On Dave Chapelle, Overrepresentation, and Free Speech

I have dedicated my career to learning and teaching, to engaging intellectually, and to advancing First Amendment rights and free speech values.  I do not believe Dave Chappelle should be censored or cancelled.  I quite enjoy some of his comedy (he has some blind spots, as we all do).  I believe it is beneficial for us all to have a comedian not shy away from controversy.  But I also believe what he did was appalling and should be rebutted.  In calling “the Jews” censorious and controlling of Hollywood, and using generalizations that would not have been accepted against any other group to an uproarious audience on live television, he proved how wrong he is about Jews’ historically and exceptionally principled attitude about free speech and comedy, and how wrong he is about power and control.

Dave Chappelle’s ability to claim there are so many Jews in Hollywood in a way that was acceptable to a mainstream audience is a product, to some degree, of the progressive project to prove that any disparities in any institution, where a group is underrepresented, must be due to some sort of inequity.  (Others believe these disparities perpetuate inequities, which I agree must be true and combatted.) Certain segments of society have accepted this idea that proportionate representation is the only way that equity exists as almost gospel.  Once you accept that, its corollary must be true – that if a group is overrepresented, it must be due to privilege or something nefarious.  This is likely at the heart of much historical antisemitism, but now it is acceptable and hilarious for famous people to say it out loud. 

Jews used to change their names to succeed in Hollywood, and hide their identities, and yet they succeeded anyway.  Quotas used to keep Jews from the best law schools, yet they flourished and created their own law firms.  This could be due to a variety of reasons, partially and undeniably an intellectual culture and an abstract method of discourse learned from a young age (moving to the Midwest, I realized that method of discourse and reasoning was not universal) and a way of engaging with their religion.  Or it could be an adaptive response to millennia of being a small minority that everyone else was trying to eradicate from the planet. 

If Kanye West has claimed on Twitter that he was going to lambaste any other minority group, his contract with Adidas would have been revoked much sooner.  Yet Dave Chappelle is agitated that Jews receive any backlash against such blatant antisemitism.  It is such a perversion of the truth to say Jews stifle dissent, when the lawyers representing Neo-Nazis who wish to march are often led by Jews, guided by the principle that dialog should be open and engaged with. The Boycott, Divestment, and Sanctions issue is a complex one, because boycotts are often not actually speech but anticompetitive conduct, and much of the criticism of Israel does reflect double standards, if not antisemitism. But it is the case that many groups, including some Jews, often improperly call certain viewpoints bigoted, to the detriment of free discourse.

At a time of increased antisemitism from both the right and the left, when our institutions are – for good and for ill – trying to rewrite rules and standards to promote greater equity, and ensure that no group is underrepresented, (and thus no group is overrepresented), Dave Chappelle’s views about who benefits from power are entirely tone deaf and cheap, but we Jews will mostly tolerate them, including those on stage who had to sit there smiling at Dave Chappelle’s false prophesy.  We will tolerate them because we have engaged with the higher principles at stake, and I wish Dave Chappelle would focus on his own blind spots and do that as well.

As much as Dave Chappelle believes people cannot say what he said, I believe it’s difficult in this climate to say what I am saying.  Yet we are both contributing to an important conversation.  Dave Chappelle cannot be canceled, and I admire his bravery.  I have tenure, and I believe the ideology that has led to his monologue, while having some virtues, should also be countered as incomplete and harmful.

Torts II 2022 Final Exam Hypo: Defamation and Nuisance

You have 950 words

Jim and Pam live next door to Dwight.  They all work together at the local paper company in Goldbergia.  Dwight also has his own small beet farm in his backyard, which attracts some stray animals to the area.  As a result, Jim and Pam don’t like to sit outside in their backyard with their baby because stray dogs and cats are constantly barking and hissing at them; Dwight knows this but is unmoved.  To get back at Dwight, Jim decided to play a prank on Dwight.  He lies and tells a local newspaper that Dwight eats beets for every meal and is starting to turn red.

Dwight is not amused.  He sues Jim for defamation.  Jim then brings a counterclaim for nuisance.  Assume the laws in Goldbergia approach these torts the same way other states would analyze these claims. 

  1. Discuss the three state-law elements of Dwight’s defamation claim.  You do not need to include the constitutional dimension – just the three elements (assume Dwight is a private figure and negligence applies to falsity).  Which element do you think will be hardest for Dwight to prove – use a case analogy to explore that element?  What will a court do with each of these three elements?
  • How will a court analyze Jim’s nuisance claim?

Answer Rubric:

  1. The three state-law elements of Dwight’s claim are publication, falsity, and defamatory. 

Publication is met. Jim purposely (at least negligently) spread the information to a third party, the newspaper. 

Falsity is met at least to get to a jury if a reasonable person would believe that Dwight was eating beets for every meal and is turning red.   This is not a pure opinion or even a mixed question of fact and opinion, like in Boeheim (where falsity could still even get to a jury); whether someone eats beets for every meal and whether someone is turning red is entirely falsifiable.  It is not the kind of vague or opinion-type language that cannot be proven true or false.   Indeed, not only are Jim’s statements falsifiable, meaning they can get to a jury and are actionable, but a jury would likely conclude they are actually false (because they are).   The only issue would be whether a reasonable reader would see the statements as humorous or merely hyperbole, in which case falsity would not be met.

Defamatory will be the hardest element for Dwight to prove.  Although turning red from eating beets might be an embarrassing false fact about someone, it does not cause contempt or ill repute.  Just as in Romaine, where stating that someone was seeing people addicted to drugs, the idea that someone is simply eating a lot of beets doesn’t imply anything badly about Dwight’s moral character that would cause people to feel ill will towards him.   This case is also similar to  Cantrell, where a false light claim was brought instead of a defamation claim because depicting someone as being poor is likely embarrassing but not defamatory.

Jim’s nuisance claim will be analyzed as a private nuisance.  Jim and Pam are experiencing diminution in the use and enjoyment of their private land – the right at issue is not a common, indivisible one to the public.

The nuisance will be analyzed as an intentional nuisance because Jim and Pam told Dwight about their inability to use their backyard (Dwight is unmoved).  

An intentional nuisance has to be unreasonable to be actionable. There are two ways for a nuisance to be unreasonable:  (1) the gravity of the harm to Jim and Pam outweighs the utility of Dwight’s conduct, or (2) the harm is serious and the financial burden of compensating Jim and Pam would not make the continuation of the conduct not feasible. 

Under 1, the harm is somewhat grave because Jim and Pam can’t really use their backyard, although a jury would want to know if the animals are just making noise or if the are actually threatening to determine the extent of the harm.  The character of the harm is not super serious because it won’t make Jim and Pam sick, although society does place a high social value of people being able to use their backyards.  A jury would also want to know the character of the neighborhood; if it is generally just residential, then Jim and Pam have a better claim, although Jim and Pam can potentially just erect a fence to block out the animals without a severe burden on them.

A jury would also want to know the utility of Dwight’s conduct.  Factors to consider would be the social value – does the beet farm provide much needed produce or help tourism to the area or employ people.   A jury would also want to know if Dwight can take measures to stop the nuisance, like setting traps.   Further, if the neighborhood is residential, then Dwight’s behavior has less utility because it is not suitable for the area.

If the harm does not outweigh the utility, then Dwight will likely win because nuisance type two will be tough to meet in this case.  Having to pay Jim – or especially getting an injunction – may prevent Dwight from operating his farm because it will be a significant financial burden on a small family beet farm owner.  (If you said this would be feasible and justified it, that is fine too.)  So, unless Jim can convince a jury that this is an unreasonable nuisance because the harm outweighs the utility, Dwight is likely to win this claim, but a jury could go either way balancing the gravity of the harm and the utility (this will at least get to a jury).

To those on the Harvard Crimson Editorial Board who voted to publish “In Support of Boycott, Divest, Sanction and a Free Palestine”

To the Editor:

I am a former Climenko Fellow who loved teaching at Harvard Law School. I still have great fondness for the school, its students, and your newspaper. I now teach First Amendment Law at Dayton Law School.  I write to refute your editorial in support of the BDS movement, and specifically to refute the editorial’s analysis of the Israel-Palestine conflict, of America’s “first amendment blindspot,” and of the power imbalances at play.

The editorial, like most campus activism against Israel, is selectively critical of Israel. The editorial ignores Israel’s repeated desire to compromise with a two-state solution (including at Israel’s inception) and the Palestinian government’s continuous, fervent desire to abolish a country built by Holocaust survivors that remains a haven for a tiny minority of people still persecuted around the world.  The editorial also ignores the many ethno-states that are uncontroversial and the countries surrounding Israel where it is illegal to even be Jewish.  Sadly, the editorial sends a message to your Jewish writers (and readers) that they do not deserve to have a homeland.  You have chosen the anti-intellectual path of solidarity in ideology over the intellectual spirit of fairness and nuance that Harvard should represent. 

Your analysis of the “first amendment blindspot” with regards to Israel is also telling of the actual power dynamics at play.  As a scholar who believes in strong, robust First Amendment protections, I fully support all rights to criticize Israel. I do not believe this criticism is necessarily anti-Semitic, although a lot more of these criticisms are rooted in anti-Semitism than you acknowledge.  That said, the First Amendment rights that attach to boycotting are complex because boycotting is a coercive economic measure, not pure speech.  Further, the anti-Semitism that has increased in intensity on college campuses – often connected to anti-Zionist activism but certainly targeting all Jews – is often not treated the same way as incidents that trigger the speech-suppressive policies that administrators marshal to protect other targeted minority groups.  Your editorial ignores the chilling effects of these policies on classroom conversations on many important issues, although criticism of Israel is often a favorite topic of professors and students.  Jews are often uniquely tolerant of criticism on issues deeply connected with our identity and have also committed to the civil rights of other groups while being abandoned and often explicitly derided by many civil rights movements.    

Harvard’s past includes institutional discrimination against Jews who, despite not being wealthy, were scoring quite high on standardized tests. To limit the number of Jews so that wealthy Protestant families were not dissuaded from sending their children to Harvard, Harvard’s admissions process began to include more “holistic” factors unrelated to academic success. In the present day, the increasing ideological power of equity initiatives means that Jews, who belong to a tiny minority, will have decreasing representation no matter how much we devote ourselves to excelling at academic and intellectual pursuits. The number of Jews at Ivy League institutions has fallen. These equity movements, because they are ideological in nature, have begun to lead academic institutions down a path that is anti-intellectual, favoring some visions of justice over rigorous, fair-minded scrutiny of evidence. What has changed the mind of the editors of the Harvard Crimson does not seem to be careful study, befitting members of one of the country’s most elite academic institutions, but watching an art installation and listening to one-sided discussions. Your analysis demonstrates that what happened with this editorial was far more an act of power than it was one of reason, or even justice.

Anatomy of a Viral Tweet

On Friday, I wrote a tweet that went viral.  The tweet engendered important, interesting debates about the rights of speakers at university events versus the rights of protesters to express opposition to the event.  People with varying views shared helpful facts and opinions on the issue.  The tweet also engendered responses on many sides from people who do not truly understand the law and certainly misunderstood the tweet.  This blog will discuss what the tweet said and will explain what the law is surrounding disruption of events on university campuses.  This blog will also consider what can be done about Twitter’s good and bad effects on public discourse.

At Yale Law School, two lawyers involved on the same side of a First Amendment Supreme Court case were hosted by a student organization.  The lawyers, from the progressive American Humanist Organization and the conservative Alliance Defending Freedom, came to discuss how liberals and conservatives can unify around free speech, a civil liberty that protects people across the political spectrum.  There are varying reports about how disruptive the event was and there is video footage you can watch.  In this video footage, some of those disrupting the event, who wished to voice their opposition to ADF’s various litigating positions, claim that they are exercising their own free speech rights to disrupt the event.

I do not agree with many of the litigating positions of ADF (although there are some free speech positions of the organization that I believe are correct).  I am a law professor who cares very deeply about the rights of the LGBTQ+ community.  As a very recent law graduate, I wrote a letter to the editor in The Washington Post, after Prop 8 passed in California, about the importance of marriage equality, long before Obergefell.  I also, as a scholar and a human being, have a firm commitment to a principled First Amendment doctrine and free speech culture.  I believe academic events at a law school where skilled litigators arguing before the Supreme Court explain their positions are essential to the learning process and open discussion.  Academic and legal norms should ensure that these events can proceed. 

I wrote a tweet which said:

“Shouting down a speaker at a designated event isn’t exercising “free speech” in the same way that punching someone whose opinions you dislike isn’t free speech. It is instead a coercive method to stifle discussion among people exercising their rights.”

Much to my surprise, the tweet went viral.  Important discussions swirled around the right to protest.  I was really pleased to see well-articulated positions on many sides of the issue.  These are necessary conversations where a variety of views should be represented.  But there was also massive anger and lecturing directed at people taking various positions.  This anger may have been projected based on people’s anger at ADF, but much of it seemed to be borne of misunderstanding, both of the tweet and of the law.

To explain the tweet, I am not suggesting that any single protester can violate the First Amendment.  Individuals cannot violate others’ First Amendment rights because the First Amendment can be violated only by the government, via legislative action, executive action, or through the judiciary via, say, defamation lawsuits.  (This is called the “state action doctrine.”).  What I was suggesting is that shouting down a speaker is not a First Amendment right itself, as some protesters seemed to claim. Uncoordinated disruptions or protesting outside of a venue is protected by the First Amendment in many instances.  Concerted efforts to disrupt a speaker at an event designed for that speaker, however, are not protected speech, meaning those disruptions can be punished by the government.  Courts have held that these efforts suppress speech.  Concerted efforts to shut down a speaker have led to arrests and prosecutions.  In general, protest is protected by the First Amendment against government punishment, but concerted efforts to shout down a speaker (if that is what happened, there are varying accounts) are not protected and are subject to punishment.  There is no forum where speech can circulate freely if the loudest voices can simply shut that speech down.  That type of coercive effort to engage in overriding speech, instead of following the rules of the forum and debating speech (or using your own platform to express your views, where other people are not permitted to shout you down), is not protected speech. 

The speakers at the event were exercising protected First Amendment rights.  They had reserved a room based on Yale Law School’s student organization policies and were engaging in protected expression, an academic discussion.  So, concerted efforts to disrupt that speech would be blocking people from engaging in protected expression (although these disruptions clearly do not actually violate the First Amendment).  Yale, a private institution, does have a policy about disrupting speakers.  The protesters, perhaps trying to follow the policy, left after the initial disruptions, although according to some reports they made it difficult for the audience to hear the speakers throughout the event.  

Again, there are varying views about how disruptive these protesters were.  Studies have shown that the more you disagree with a protest, the more likely you are to believe the protest was harmful, and vice versa.  My point was simply that if the speech was purposely intended to disrupt an event from happening or to significantly derail the event, and if it was sufficiently disruptive, it is not free speech.  It is not protected by the First Amendment.  It is instead unprotected as regulable conduct, the same way punching someone may be expressive, but it is not expression.  It is instead coercion, designed to prevent others from speaking. 

The line between when protected protest becomes criminalizable disruption is drawn by the courts, but there are factors courts look to, such as how disruptive the event was, how premeditated the disruption was, how coordinated the disruption was, etc.  Also, the law hasn’t been settled by the Supreme Court in this area, although we do know that the government is not entitled to remove speakers simply because angry hecklers are threatening the speaker.  Indeed, the government must protect that speaker in order to ensure that those with the most agitated responses to speech do not chill the free exercise of expression. 

In retrospect, I should have been even clearer about what I meant and the context of my tweet, especially on an issue this politically charged.  In a second tweet, I did note that there are disputed accounts from reputable sources of how disruptive the protests were. But the impulse of many on Twitter to react angrily, prior to understanding, is damaging to productive discussions.  Experts, especially women, who wish to express positions about topics with any sort of sensitivity are often treated to angry lectures by people who are far less informed or who do not wish to engage in true reflection on a topic.  Jews who defend robust First Amendment rights are lectured by people with no familial connection to the Holocaust about the dangers of Nazism. The cost of having any sort of platform on Twitter appears to be a lot of misdirected anger, which is fine in a way.  Exercising one’s right to speech should carry consequences.  But these consequences, on Twitter, are highly corrosive to actual dialog and may do more harm than good.

In our fast-paced speech environment, a critical number of people will not take the time or thought to read a tweet carefully or reflect upon it.  Some require little knowledge on a subject before they feel entitled to spread misinformation about the law.  Proponents of the First Amendment are attacked by conservatives as too liberal and are attacked by liberals as too conservative.  There is a real danger in assuming someone’s views based on the fact that they are willing to advocate for genuine free speech protections. 

All of this is to say that as experts are increasingly disenchanted with Twitter, because the character limit robs tweets of nuance and because people react before deeply thinking about a topic, the most inflammatory tweets by those with the shallowest views have the most impact.  This is a disturbing facet of public discourse, perhaps far more disturbing than “cancel culture.”  This react first, understand/reflect later, culture is part of the same problem that leads students to disrupt important, productive academic events before even hearing anyone’s position.  I wish there were a way to infuse more complexity and accuracy into public discourse.  If anyone has thoughts on this, please do share. 

New Quiz: Are you a rules person or a standards person?

Yesterday, my students and I discussed perhaps my favorite jurisprudential debate in the law – whether legal doctrines should generally be structured as rules or as standards

Rules are clear, bright-line tests that are transparently applied with little to no discretion, meaning they can be applied fairly to everyone and predicted in advance.  The age of consent, for example, is a rule.  Regardless of someone’s level of maturity (or immaturity), the age of consent clearly and predictably can be determined for each person. 

Standards allow for more individualized, case-by-case determinations that use a more amorphous test, such as whether someone fell below “the ordinary care of a reasonable person” in the negligence standard.  In most cases, juries will apply this standard on a case-by-case basis, less predictably and sometimes less fairly, as there is room for each judge or jury to exercise discretion and thus situations where like cases will not be decided alike.  This sacrifice of fairness does have the benefit, to some, of allowing individualized determinations that impart a sense of justice in each case. 

I believe everyone is either more of a rules person or more of a standards person, although some jurisprudential contexts lend themselves better to rules and some to standards.  I am generally a rules person, although much of Tort law is framed as standards.  There are exceptions.  The question of whether we have a duty to others is often a legal rule for the judge, not the jury, to decide. And when a judge dismisses a case on summary judgment, a legal rule/precedent is often set about what cannot meet the legal standard, such as behavior that does not fall below the standard of ordinary care as a matter of law and thus cannot subject defendants to liability.

Take this quiz to see where your predilections lie:

QUIZ:

  • In the state of Goldbergia, the statute of limitations for filing a negligence lawsuit is three years.  Plaintiff, who may or may not have a meritorious case, becomes quite ill right before the three-year deadline and sues one day after the three years has elapsed.  What should judges do?
    1. Adhere to the deadline.  This way, all defendants can know exactly when they can have finality, and no longer be subject to suit.  Plus, the three years treats all plaintiffs fairly, regardless of circumstances, and doesn’t allow some judges to carve out exceptions that may swallow the rule.
    2. Allow plaintiff to sue.  Plaintiff missed the deadline by only one day and had a good reason.  It would be unjust to foreclose plaintiff from filing the lawsuit.
  • Good grammar:
    1. Is important for maintaining precision in communication and clarity of thought, even if the rules are sometimes arbitrary.
    2. Is not necessary so long as your audience knows what you are trying to express.
  • You play sports because:
    1. There are clear metrics for achievement. Although the rules may sometimes be arbitrary, everyone is treated the same and can thus compete against each other to chart their own progress.  Cheating, even if it’s a stupid rule, violates this system.
    2. It builds character and a sense of teamwork.  It’s great exercise.  You don’t always have to follow the rules if something won’t affect the outcome.
  • Uber should be legally responsible for the actions of its drivers:
    1. Either never or always.  Let’s establish a clear rule so everyone understands, can purchase liability insurance correctly, and can decide their behavior accordingly.
    2. It depends.  If the driver is doing something in Uber’s best interest, and Uber represents drivers as agents even though they are independent contractors, then, in some cases, Uber should be legal responsible.  Let’s decide by looking at the specifics of the particular case.
  • Describe yourself:
    1. Sometimes you can be a stickler for how things “should” be.  This doesn’t mean you are rigid or not open minded or spontaneous or fun, but you hold everyone to high standards.
    2. You’re a softie.  You’re very empathetic and try not to judge others.  We are all fighting different battles and need to be understanding of each other.

Results:

If you answered mostly 1. – Congrats and mazel tov, you are a rules person!  People will know where they stand with you, even if they don’t like it!

If you answered mostly 2. – Felicitations and wonders, you are a standards person!  You like looking at the specifics of each individualized case and will sometimes go off-route at a climbing gym.

I Teach Criminal Procedure. Here is What I Experienced on My Ride Along with the Philadelphia Police Department

I am a somewhat traditional law professor.  My general view is that learning the law must be primarily an academic exercise, where students develop the ability to comprehend the nuances of cases, synthesize and organize legal principles, and apply those principles to new fact patterns.  This way of learning must be supplemented, as my own legal education was, with practical training and exposure to how the law actually operates.  Last week, when visiting friends in one of my favorite cities, Philadelphia, I received some significant exposure to one police officer’s patrol beat.  This ride along was an invaluable experience for me, as a professor who teaches Criminal Procedure (Fourth Amendment right against unreasonable search and seizure, Fifth Amendment right against self incrimination, and Sixth Amendment right to counsel).  I am sharing my experience because (1) the police officer said I could, and (2) I think every resident of the United States should get a glimpse into what I saw. I learned about the typical (and atypical) job duties of a Philadelphia police officer, how assignments are apportioned, how officers handle – logistically and psychologically – homicides and shootings, and how the police view community members and other governmental actors.

The Homicide

I learned a bit before my ride along that a homicide had taken place in the early hours of that morning, so I would be fitted for a bulletproof vest.  I don’t know if that is general protocol, but I certainly felt a decent amount of nervousness heading into my ride along.  The homicide turned out to be within the special beat of the officer who graciously took me on the ride along.  He had even found a bullet casing earlier that morning, hours after the shooting that left one injured and one dead, and had to call the fire department because blood was still in the street.  He brought the bullet casing to the homicide unit before this shift of our ride along. 

During the ride along, partially to establish a presence and partially to demonstrate his job to me, the officer brought me to the street where the homicide occurred.  We exited the car, and he showed me some chalk markings in the street and explained what happened.  It was eerie and surreal to me.  The loss of life was sad and disturbing.  I thought about the man’s last conscious moments as we retraced them.  I thought about his family and the people inside the home that he stumbled to for help after he was shot. I wondered if we were safe standing on the street now.  I have lived in places where I heard gunshots on occasion, but a homicide had just recently occurred here.  Even inside the police vehicle, I felt a mix of adrenaline and fear, totally exposed, because I know that, for various reasons, now is a time of increased antipathy towards the police. 

Sense of Danger

My feeling of fear dissipated after only half an hour, however, based on the officer’s own feelings.  I asked the officer – whom I will not name because he told me he cannot and does not represent the views of the Philadelphia Police Department – if he feels afraid.  His response, without even a pause, was “no.”  Most of the members of the community on his special beat, the three-neighborhood area that he covers in grid formation, like him.  He likes them too.  I could tell that he felt at ease, and a main reason he loves his job is that he can keep the streets safe for the community and interact with residents.  In the 1.5 years since he graduated the police academy – with special crisis intervention training so that he can carry a taser – he has never pointed his weapon at anyone or even used his taser.  He is required to take out his gun to secure buildings, but he’s never used it.  Just the previous day, he almost used his taser when a man ran at him with scissors, but the man stopped, and using the taser became unnecessary.  Obviously, this is just one police

Nervously and awkwardly awaiting my ride along…

officer’s experience. Plus, this is an officer so professional and amiable that he was asked to do the ride along for a friend of a city judge.  But, the idea of police officer as constantly afraid, and therefore dangerously trigger happy, was belied by at least this one officer’s conception of himself and his job.   

The Officer’s Beat

In fact, we responded to one call about a suspicious person perhaps dealing drugs inside a corner grocery store.  The officer waited several minutes outside the store and didn’t see anyone matching the description (although we saw others), so he asked for backup (two officers are needed to enter a building) and entered the store.  Although someone was in the area of the store the caller noted – between two arcade games – no one matched the description, so the officer ultimately just left the store.  I asked if simply finding a person matching the description would be sufficient probable cause for an arrest, and the officer said no, he would need to see someone actually dealing drugs.

This officer was calm and thoughtful, answering question after question (I was super confused about the logistics of how all these calls get divided up and responded to), even as he showed me, on his patrol, bullet holes in buildings and predicted (correctly) where bullet holes would be on parked cars at the scenes of recent shootings.  “These cars should have bullets in them,” he said as we drove slowly past, and they did.  His patrol grid was in an area that saw a shooting once every couple of weeks. 

In this officer’s patrol area, there are some local gangs, divided by street, who, it seems, mostly fight over saying insulting things to each other on social media, in addition to dealing some amount of drugs.  The gangs here, unlike major gangs, are partially social, and even produce some rap music. These neighborhoods are safer than other parts of Philly, which see one or two shootings every night.  And we were on a day shift (although the officer was working overtime), so there were fewer calls.  At night, this officer’s computer monitor lights up with calls, marked with colors for how high-priority the call is.  Calls are also marked whether there might be a mental health issue requiring a crisis intervention specialist. 

Although some patrol officers cover general territory, he explained that he covers a special grid, establishes a presence there, and responds to calls in that area, like domestic disputes, suspected break ins, or drug issues – either calls where he is the primary officer on scene or high priority calls where he serves as backup.  On other shifts, he does pedestrian or traffic stops within that area; traffic stops appear to be the largest source of arrests.  Because Philadelphia is such a large city, patrol officers have different job duties than detectives, who investigate cases and mainly execute search warrants, but not every city uses this division of labor.  We drove back around to the area of the homicide, and he tried to get the attention of a resident who had asked earlier that morning if he would be returning, because she was having a barbeque later that day and wanted a police presence for safety.  We couldn’t get her attention, so we left her to barbequing.  Another woman gave the officer what appeared to be some packaged food.  She smiled and put the food right into the backseat of his squad car. 

The officer showed me a street that was bereft of activity, because, according to the officer, the feds had made many arrests there.  Many of the officers are frustrated (this is well known) with how Philadelphia’s District Attorney is handling prosecutions, and, according to the officer, the feds are coming in to perform tasks that the City may not be doing.  The biggest sources of frustration experienced by this officer related to the perception that the DA’s office was releasing arrested violent criminals, who would offend again.  Whether or not this is actually happening more than the DA’s predecessors (the DA denies this), and whether or not this is due to shoddy police work that cannot support a prosecution or whether other factors are at play, there is a huge disconnect in communication between the DA and many officers that is likely affecting morale and impeding everyone’s ability to function optimally.  The officer, in answer to my question, also believes there aren’t enough officers, and eventually, this may create a backlog as cases pile up or even become an officer safety issue.  More are being trained now, and perhaps covid held up some officers being trained.

Lessons Learned

Overall, a great number of myths were dispelled for me.  Officers – and even many residents – in areas that experience a non-trivial number of shootings can still exist and feel somewhat safe, at least in these Philly neighborhoods on this officer’s beat, because the shootings are usually targeted to particular gang members, although many bullets are fired because the shooters don’t have precise aim.  Police officers aren’t always incredibly vulnerable targets, although their jobs are scary and need support.  A decent amount of a patrol officer’s job is the proverbial “hurry up and wait.”  Some police officers are happy to share their experiences with community members and discuss their jobs; it is great that the City offers these ride alongs.  Most calls do not lead to arrests.  Oh, and the officer told me that, in his experience, women are more likely to fight an arrest than men.  Men will flee, but once they are caught, they don’t fight.        

This is just one officer’s life in three neighborhoods in Philadelphia, during a bit of a spike in violent crime that is affecting the entire country.  The officer told me I would need to do several ride alongs to really get a sense of the variety of experiences that the job presents, and I hope I can do more.  And, of course, members of the community, the DA’s office, and certainly criminal defendants, would share different stories, have markedly different perceptions, or draw different conclusions.  Still, this is all illuminating, even if I am far from making total sense of it. I can much more easily make sense of the dense, logically linear prose contained in the judicial opinions I teach, but interactions between professors and government officials like these benefit everyone, I hope. 

The Poisonous Discussions Around Critical Race Theory

Let me begin by stating that I know what Critical Race Theory is.  This method of interpreting history and culture began with the legal academy as an offshoot of critical legal studies, which examines how the law and other institutions perpetuate social hierarchies.  An example of a critical feminist studies paper I loved is a fantastic law review article on how the status of emotional harm in Tort law stemmed in part from a lack of female judges and a dismissal of harms more commonly experienced by women.  Although I still believe that physical harm merits more protection than emotional harm (for a variety of reasons including the subjectivity of emotional harm and the free speech concerns that arise when protecting some emotional harm), the article was an illuminating read.  Critical Race Theory examines how our laws have defined and subordinated racial groups.  The criminal procedure textbook I use incorporates important insights from this perspective.        

Critical Race Theory can help us understand our current racial landscape and may lend support to certain racial justice initiatives.  It is a necessary antidote to the view that the law is totally neutral (although I believe it is more neutral than many).  Critical Race Theory has been an invaluable lens for grappling with our racist past and current racial divisions.  However, even in its sophisticated form, it is often built around narratives and individualized experience.  Although scholarship based on critical legal studies sometimes lacks academic rigor, few are willing to come forward and dismantle some of the conclusions built around incomplete narratives.  Thus, even in its sophisticated form, Critical Race Theory tends to the extreme and sometimes overlooks non-hierarchical explanations for social phenomena, because its proponents often polarize themselves into an intellectual bubble.  Conflicting data is sometimes ignored, as is evidence of our legal system’s many attempts to dismantle hierarchies, often in ways that (perhaps unfairly) impose major penalties on “dominant” social groups. 

 In its unsophisticated form that has captured the current zeitgeist, Critical Race Theory has led many to believe that our entire country is built around white supremacy, despite the fact that the Enlightenment-style thinking that created this country and its Constitution (although written by some slave-owning hypocrites), has been a source of progress and equality around the world.  In its unsophisticated, popular form, Critical Race Theory has been digested in ways that actually turn off people’s critical thinking faculties and cause them to denounce even merit-based thinking as white culture or white supremacy, or to consider even things like capitalism, an economic alternative historically linked to liberty and progress, to be racist, or Jane Austin to be colonialist.   If white people dislike being lumped together or generalized in their beliefs and practices, that is considered white fragility, not the natural response to stereotyping.  You can see how, in the wrong hands, a legitimate scholarly movement has gone round the bend.  I have been called classist and elitist on social media for explaining the correct use of the term “begs the question” and suggesting that removing nuance from language undermines our ability to appreciate complex ideas.  

The discussions around how much Critical Race Theory to incorporate into schools has become toxic, largely due to the fact that many opponents and supporters don’t exactly know what it is.  This definitional problem is, in part, because Critical Race Theory is now many things to many people.  A major barrier to examining the issue of Critical Race Theory in schools is polarization.  Many school administrations have been captured by those with extreme progressive ideologies, and then those with extreme regressive ideologies fight back.  This type of issue, in particular, becomes toxic and polarized because it is so delicate that mostly those with strong, extreme opinions want to discuss it publicly. 

What I want to add to this discussion, ironically, is personal, but I do invite others to weigh in because I firmly believe that more speech leads to more understanding and better outcomes.   I do not believe school boards or legislators should ban teaching Critical Race Theory in school.   There are legitimate lessons to be learned and important modes of analysis to be incorporated, and we owe it to all students to understand the racist foundations of this country.  Banning any type of teaching is a blunt, censorious measure. However, at least in my personal experience, the way we are incorporating anti-racism into schools is deeply flawed.  Law schools and universities are making statements – purportedly on behalf of all faculty – that contain interpretations and opinions, not facts, on highly contested issues.  We now feel required to teach versions of “cultural humility” and “cultural competency” that border on – I’ll say it – indoctrination, which I would define as requiring students to learn and believe normative opinions instead of teaching them how to think and rigorously analyze.  There is not sufficient political diversity among professors, and I can’t imagine it’s much better in K-12 education, where the local political silos are probably even more separated from each other.  In the name of social justice, education is compromising its main purpose and its academic integrity and credibility.  We are also losing our ability to have nuanced discussions on race, in part because people are afraid to express opinions that go against university orthodoxy on these issues.  I think the CRT battles we are seeing are partially a biproduct of resentment of this academic capture.

I have faith that we can correct our past incomplete teaching on racial issues without overcompensating and allowing faulty, self-serving history (like the 1619 Project) to be taught as truths in schools.  (Apparently, many schools are not teaching it as truths anyway but as a way to understand the subjectivity of history.) We need to have informed, nuanced discussions for this to happen, however – and we need to listen to each other and respect our experiences as individuals while also rigorously analyzing the conclusions we reach.

Torts Final Exam Hypo Essay and Answer Key

I quite enjoyed this one, since it involves a reality Tv show.

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Part II. Essay

Respond fully in essay form to the question below. 

Erica Plaintiff is selected, after a rigorous screening process, to be on a new reality TV show, “Torts Everywhere.”  Erica is to live in the state of Goldbergia, USA, in a house selected by the television show.  Viewers watch her contend with a variety of issues set up by the “Torts Everywhere” producers, including the oven easily catching on fire, the toilet overflowing, and strange noises constantly being heard while Erica is trying to sleep. 

One day, during filming, the producers of “Torts Everywhere” also discontinued Erica’s phone service.  She accidentally tripped on the floor (not due to anything set up by the producers, but because she is clumsy), and could not call for emergency assistance.  Due to her inability to get timely medical care, what might have been a simple cut became infected, and Erica incurred medical bills and lost wages as a result of the delayed medical treatment.

Erica sues those involved in the making of “Torts Everywhere” for both battery and negligence (assume vicarious liability is met). 

Answer the following questions:

  1. How is Erica likely to fare on the battery claim?  Can she meet the elements of battery?
  2. What defense would “Torts Everywhere” assert to the battery claim, and how is that likely to fare?
  3. How is Erica likely to fare on the negligence claim?
  4. If “Torts Everywhere” argues assumption of the risk and comparative negligence, how are these defenses likely to fare?  Analyze the two defenses separately.

Answer Key:

Battery:

  1. Battery is an intentional harmful or offensive contact upon another.  The harmful/offensive contact was between Erica and the ground, but the intent element may not be met.  The producers, in this scenario, didn’t do anything to the floor for Erica to trip.  Although they did disable her phone service, which made her injury worse, they do not seem to have the requisite purpose or knowledge for the contact that occurred between Erica and the floor.  This is unlike Garratt v. Dailey because there isn’t even a supposed prank involved that caused the contact. 

2. Their best defense to this battery, if it is a battery, is consent.  Erica agreed to be on this TV show, where she would experience many torts.  She agreed to do this for money, or for fame, or for fun, or any number of reasons.  To the willing, there is no injury, just as a prize fighter who dies cannot later sue if he is injured far more than he expected.  There is a question of whether disabling Erica’s telephone was within the scope of her consent, but “Torts Everywhere” as a premise seems to indicate that Erica was agreeing to any number of offensive contacts potentially happening to her – and the defense might at least get to a jury.

Negligence:

3. The act of cutting Erica’s telephone wires constitutes malfeasance, so there is a general duty to avoid causing harm through actions.  A reasonable person would not cut someone’s telephone wires, and this did cause Erica’s injury – or at least cause the aggravation of an existing injury.  An injury of this nature is not unforeseeable, so the breach will not be dismissed on summary judgment like in Adams v. Bullock.

But for the cutting of the telephone wires, Erica would only have a simple cut, not an infected injury requiring medical treatment.  Certainly, this type of injury is not unexpected, given that Erica is living in a torts-infested house and cannot call for help, so this is not a Wagon Mound situation.  Disabling someone’s phone is risky precisely because then people cannot use their phones when they are needed, so this injury is within the scope of the risk, and proximate causation is met. 

4. The producers of “Torts Everywhere” will first claim comparative negligence.  Erica had a duty to herself to avoid causing harm through malfeasance, such as tripping.   She breached this duty by being clumsy.  Her clumsiness doesn’t get taken into account in the reasonable person standard, so a jury is likely to decide she fell below the standard of care.  In addition, her clumsiness is both the but for and proximate causes of her injury.  If she hadn’t fallen, even with the disabled phone wires, she wouldn’t have been injured.  Tripping and falling is within the scope of the risk of acting clumsily.  She will likely have to pay some amount for falling in the first place.   if Erica lives in a comparative negligence jurisdiction, that will be a complete bar to recovery, otherwise, the negligence gets compared in some way – or perhaps is a bar in a modified comparative negligence jurisdiction. 

The assumption of the risk defense may also be valid, both express and implied.  Erica likely signed a contract to be on the show, and she may even have accepted the idea that her phone would be disabled, or any number of tortious events would happen to her.  Discuss the Tunkl factors… Given that, if the courts upheld this contract, any number of injuries could befall her, and the “Torts Everywhere” producers would have a complete defense even to the aggravation of her harm from a small cut to a serious injury.    For implied, this would be primary assumption of the risk, because the risk is inherent to the activity, but the tough question would be whether having her phone service discontinued is within the scope of the risk.  Perhaps not, since that seems beyond just a house of torts happening.  

Teaching Law During a Pandemic/Election/End of the World

Next week is Dayton Law School’s last week of the semester, which was compressed to twelve weeks due to the pandemic so that students can travel home for Thanksgiving without having to return shortly after.  This semester was relentless, with no breaks or holidays.  I taught each live lecture (2/3 of my material) four times, to four sections of students.  About half of my students opted to take classes remotely, and the other half were permitted, a few weeks into the semester, to start attending classes in person.  We taught through a global pandemic and social discord and now an election.  I have learned so much from this experience about teaching, about law, and mostly about humanity.

I have emerged (quite tired but) so pleasantly surprised at the resilience and empathy of my students.  I thought the pandemic would make what I teach — liability for civil wrongs and the attendant trial process and technicalities of motions —  irrelevant to them.  I was wrong.  What has impressed me most is the students’ desire to continue engaging with Torts, a conceptually sophisticated subject that often requires reading dense, difficult judicial opinions (often by Justice Cardozo, whom a student noted today I have “a thing for”).  Through all of the adjustments, through the election, through it all, the students kept learning hard material.  What choice did they have?  The major difference between this year and last is that these students were also explicitly more empathetic as well.  They asked me how I am and how classes are going for me.  They tell me when I am doing things well.  We check in on each other.  I check in more too.   I do not think this increased familiarity has impeded learning; I think it has perhaps aided it.

The beginning of the semester was inauspicious.  Learning educational technology was a decidedly unwelcome task to add to my overloaded teaching and committee responsibilities.  I had to begin filming pre-planned lectures for 1/3 of my classes (the other 2/3 classes each week would be synchronous, or live), arranging Zoom classes, figuring out how to design online tests that precluded cheating, and responding to countless emails, at all hours of the day and through the weekend, from confused and anxious first-year law students.  I had to draw some boundaries about what are appropriate subjects for emailing me versus finding things out on their own, and I had some “this generation” moments….but I was often inaccurate and overgeneralizing.

I ached for the students.  I loved law school so much, and they would be deprived of my wonderful experience, roughing it the fun way in the dorm (a dorm that has since been demolished, where the late Chief Justice Rehnquist lived as a law student and where mosquitos bit me throughout the night in the summers due to screenless windows).  My law school experience involved easy bonding with classmates over law puns and professor comments and being surrounded by people going through the same intellectual challenges and growth as me.  That is difficult to achieve remotely.  Not everyone is well suited to online education, or perhaps not all of the students (as is usual) wanted to manage the difficulties of law school, and some students left or took absences.    Other students actually thrived and even enjoyed the pre-recorded lectures, because they could play them at their own pace.  After Zoom classes, students and I would stay and chat, addressing questions and gossiping for significant periods of time because, as one student remarked, this was the most social interaction he had in a while.  I made students unmute themselves to say hello to me – needing that voice across the screen but also wanting them to feel what it was like to be heard. 

When the law school opened back up again for in-person classes, the adjustment was difficult at first.  We were all habituated to Zoom classes, and half of the students were now in front of me, more subjected to my Socratic method than ever and unable to hide behind computers.  Wearing masks in the classroom meant I couldn’t see whether my students were smiling or frowning.  The classroom energy, at first, was lower than the Zoom classes.  This changed within a couple of weeks.  Now my in-person classes have almost the same spontaneity, rowdiness, and cooperation as classes prior to coronavirus.  I wear a transparent mask, so they can at least see me laughing at their jokes and witty remarks and smiling at their cleverness (and puzzling over comments that are not entirely on point).

When the election came, I thought that might finally render my students apathetic to Torts.  We were learning proximate causation, a doctrine that determines whether the harm defendant caused was within the scope of the risk of defendant’s negligent behavior.  Defendants are not civilly responsible for damages they cause if the type of injury that occurred is unforeseeable based on their negligent behavior.  But after a swift, nonpartisan talk about the election, they wanted to get back to business, and were generally prepared and inquisitive.

What I said to the students, and what they continue to teach me, is something I first read in a fortune cookie.  I told them something that most closely encapsulates the one thing I truly believe.  The fortune cookie said, “the only good is knowledge, and the only evil is ignorance.”  I am so grateful to be in the classroom, learning from my students not only how many different styles of teaching can be effective and how many diverse learning styles there are, but also that showing empathy and requiring fortitude are not always in tension.  My students appear to be performing as well as any other semester, and I hope I am as well.

Criminal Procedure Spring 2020 Final Exam

Final Exam

(I highly recommend drawing out the chain of events.)

The Goldbergia police department is trying to stop a final exam cheating ring, perpetuated mainly by John and Paul.  Members of the GPD put a recording device on John’s best friend George.  The police record a conversation in George’s home where John admits to masterminding the cheating ring.  “Imagine all the people….living life in peace,” he says of his utopian plan to rid the world of grading.  John also mentions, on the recorded conversation, that Ringo is responsible for collecting the money from students looking for exam cheating help.

After hearing this conversation, the police immediately place a GPS tracker on Ringo’s car.  The tracker marks Ringo going to Yoko’s house on ten different times over the course of two days.  As a result of this discovery, police point a device at Yoko’s house from across the street that measures a specific stress hormone associated with illegal activity (and usually only illegal activity) that emanates off the walls of Yoko’s apartment building, in order to determine if illegal activity is happening inside.  The stress hormone levels coming from Yoko’s building are consistent with residents being worried about detection by the police.  The police do not get warrants for any of their investigative activities.

The Goldbergia police then call Yoko and ask her to come to the station.  Yoko agrees.  Upon her arrival, the police say to Yoko, “do you know why you’re here?  Tell us about the cheating ring with John, Paul, and Ringo.”  Yoko looks away quickly but says nothing.  The police then arrest Yoko, Mirandize her, and demand that she sign a form indicating that she understands her Miranda rights.  Yoko signs the form.  The police use this handwriting sample to compare it to the handwriting of one of the masterminds of the cheating ring.

John, Ringo, Yoko, and Paul are indicted for running a final exam cheating ring.  Paul’s attorney does not call any character witnesses, assuming that all of Paul’s friends are shady people.  Instead, she employs a strategy of claiming that Paul is too idealistic and just wants everyone to be happy and let it be, and is thus too insane to form the requisite mens rea to be convicted of running a cheating ring.  She adopts this strategy because there is so much evidence that Paul was running the cheating ring.

A court must make the following decisions.  Analyze what a court is likely to do, covering multiple possibilities for hard, open issues.

  1. A court would like to admit the evidence of John and George’s recorded conversation against every single defendant. Which defendant or defendants, if any, will the court likely admit this evidence against.
  2. A court would like to admit the evidence produced by the GPS tracker against every single defendant. Which defendant or defendants will the court likely admit this evidence against?
  3. A court would like to admit the stress hormone detection evidence against every single defendant. Which defendant or defendants will the court likely admit this evidence against?
  4. A court would like to admit against Yoko her looking away, and her silence, during police questioning. Will a court likely allow this evidence to come in against Yoko?
  5. A court would like to admit the handwriting sample against Yoko? What decision will it likely make?
  6. What decision is a court likely to make about the representation in this case, and how will it analyze the issues?

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