Why Compelling Narratives Aren’t Good Law

In the wake of the Parkland, Florida mass shooting, students are no longer willing to sit idly by as we adults do nothing about gun violence.  The high school students who have led protests and rallies are excellent speakers, and their activism is inspiring. What is concerning is that their activism is not sufficiently distinct from how many adults engage in politics, although adults should have a more sophisticated and nuanced view of the world.  Part of the problem is that the political stories we tell ourselves, which favor emotion over analysis and lead to demonization and polarization, are deceptively compelling.

 

 

This morning, the following insightful thought went viral on Twitter: “I’m not sure why people are so surprised that the students are rising up—we’ve been feeding them a steady diet of dystopian literature showing teens leading the charge for years. We have told teen girls they are empowered. What, you thought it was fiction? It was preparation.”

 

Of course, dystopian fiction generally involves people rising up against oppressive, totalitarian governments, whereas these students are seeking more government control. Plus, dystopian fiction usually involves an obvious villain.  In our case, we have politicians who take money from the National Rifle Association instead of enacting common-sense gun restrictions on assault rifles and high capacity magazines. However, none of the NRA members or politicians has actually perpetrated these mass shootings, and accepting money from lobbying groups is how our faction-based, advocacy-oriented government works (for good and ill).

 

Of note, this morning’s tweet was written by an English teacher.  Part of the problem afflicting our current political climate is that many base their views of the law on compelling narratives, in literature and on television. These narratives are too simple.  They generally involve an underdog-archetype fighting high-powered political players or a wealthy corporation. This leads to political thinking that the “little guy” is always right, and going after the “big guy” is always the proper course of action.

 

Some examples come to mind as to why this isn’t always the case. Insurance companies are often depicted as evil on television.  Indeed, the debates surrounding the Affordable Care Act have labelled politicians and insurance companies as literally killing people. This ignores the omission/concussion distinction (allowing an act is very different than committing it), and the idea that our system, developed based on civil liberties as against the government, generally doesn’t believe you have a “right” to someone else’s labor.  Once students take Insurance, they realize that certain laws regulating insurance markets create adverse selection effects, raising premiums for everyone. Health care is a complex area, and shouldn’t be reduced to easy stories.

 

Similarly, my own law students now recognize that high damages awards, which feel satisfying (and are sometimes fair and just) when sympathetic plaintiffs sue large companies, affect us all.  Companies pass off their costs to consumers in the form of increased prices. This especially affects poorer people.  But the tendency to want to redistribute money against corporations, even when they haven’t committed any legal wrong, remains.

 

Finally, in our efforts to find a compelling narrative to fit Parkland, some have found the perfect villain- men. The problem is male entitlement, they argue, and toxic masculinity. Although it is true that mass shooters are basically always men, the five people who purposely served as human shields, saving the lives of other students, were also male students and teachers (four died, one is now in fair condition). The way we socialize men is complicated, leading to some vices but also virtues that should not be ignored.

 

Although I am heartened to see students involved in politics, sensible, rational solutions require more adults.  Proposals to lower the voting age strike me as unwise- and perhaps politically self-interested.  Young people mostly echo their parents’ views, until they are exposed to new communities and ideas, once they leave their homes.  (Some parents are more forceful than others in indoctrinating their children; the good ones also encourage their children to think for themselves.)  My intellectual development, greatly affected by my parents and teachers in high school and college, truly matured in law school- where I learned the value of systemic thinking, and the need for a law to be administrable, not simply just (for example, who defines “mental illness” when we tighten gun laws on this population, and how will that affect the stigmas they already face).  Law school also taught me the importance of rule-based approaches to ensure fairness and consistency, looking beyond the facts of any particular case to the broader principle.  These values don’t make for compelling narratives, but they do make for good law.

 

Why Doesn’t the Latest Mueller Indictment Violate The First Amendment?

Two days ago, Special Counsel Robert Mueller charged 13 Russian nationals and three Russian entities with conspiracy to commit fraud and conspiracy to commit wire fraud against the United States.  The basis of these allegations is that Russian individuals and entities used fake identities to spend money, pay protesters, and operate social media accounts, with the goal of influencing our 2016 Presidential election.

These activities violated laws prohibiting foreign nationals from spending money to influence United States elections and laws banning agents from foreign entities from engaging in political activities without first registering with the Attorney General.  Further, foreign nationals entering this country must provide truthful information on their visa applications, and some of the Defendants traveled to America without disclosing that the true purpose of their visit was to collect intelligence to inform their election-meddling operations.  At first blush, some of these activities appear to be protected by free speech guarantees, but recent case law on both dishonest speech and foreign participation in United States elections likely indicates otherwise.

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The Internal Inconsistency in Abood – and What It Means for Janus

The Supreme Court will soon consider whether requiring government employees to pay union dues, even if they disagree with union activity, violates the First Amendment.  This question has previously been answered in the negative in Abood v. Detroit Board of Education.  The Supreme Court may, however, overrule Abood.  That decision would likely provoke political outcry from union supporters and possibly more muted legal outcry from rule-of-law types, like me, who think the Court should not easily overturn its precedent.  There is one snag that does make the stare decisis question harder for me:  Abood is fairly incoherent.

Some have argued that Abood is inconsistent with large swaths of First Amendment law.  Others argue instead that overruling Abood would create jurisprudential inconsistencies.  Perhaps worse, I believe Abood is inconsistent with itself.  Abood, in two different portions of its opinion, takes two different views on whether forced funding of a union’s activities creates a First Amendment harm.  Abood held that requiring government employees to fund collective bargaining activity was not a free speech violation, because the employees remain free to express their disapproval of the union’s position.  But Abood also held that requiring government employees to fund a union’s expression of political views was a First Amendment violation, even though the employees also largely remain free to express their political views.

Even if this current Court can distinguish between a union’s expenditures on collective bargaining and on political expression, it should not do so based on the murky logic of Abood.

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Larry Nassar and the Purpose of Criminal Proceedings

This semester, I am teaching torts and criminal procedure.  Tort law imposes civil liability to redress wrongs that private individuals/entities commit against other private individuals/entities.  Criminal procedure concerns the rights afforded to criminal defendants, including rights against unreasonable searches and seizures, the right against self-incrimination, and the right to counsel.   Both tort law and criminal law involve society’s response to harms, with criminal law’s harms meriting not just civil damages, but imprisonment and sometimes death.  The rationales motivating tort law– compensation, deterrence, fairness, and the efficient administration of the law – are often in tension with one another.  Fairness to a defendant, for example, may thwart the goals of compensation and deterrence.

This week, debates over Judge Rosemarie Aquilina’s handling of Larry Nassar’s sentencing hearing provide strong evidence that our country is deeply divided not just over the purposes of criminal law – incapacitation, deterrence, punishment, and rehabilitation – but over the purposes of criminal proceedings.

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“Grace,” Aziz Ansari, and Katie Way: The Free Speech Dimensions

Considering the free speech dimensions of the accusations against comedian Aziz Ansari can help frame the issues thoughtfully.   In some ways, anonymous Grace’s account of an evening with Aziz Ansari, as told to writer Katie Way, is a triumph for the First Amendment and its underlying values.  In other ways, the account and responses to the account are disastrous for free speech values.   By examining the First Amendment and free speech values dimensions, we can better wrap our heads around the babe story, the backlash to the babe story, the backlash to the backlash to the babe story, and the backlash to the backlash to the backlash to the babe story.

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Aziz Ansari and the Legal Definitions of Sexual Assault and Harassment

I awoke this morning to a tweet from National Review columnist Heather Wilhelm that said, “Modern feminism: 1. Go on awful date with awkward/gross/aggressive famous person, but lack the agency to get up and leave. 2. Famous person texts, clearly clueless, gets scolded, apologizes. 3. Stay anonymous, but shame him in front of the whole world.”

This tweet reminded me of the “strong person,” theory of the First Amendment, where a properly functioning free speech doctrine generally requires that listeners deal with emotional upset, have the agency to turn away from or ignore speech they would rather not hear, and use counter-speech to undermine unreasonable positions.   So much of how we discuss sexual harassment and sexual assault touches upon notions of agency and harmful speech in ways that also implicate our thinking on First Amendment doctrine.  I planned on blogging about some of the similarities between notions of agency in the First Amendment and in the sexual assault context.  However, then I read the link attached to Wilhelm’s tweet.

The story – an exclusive on a website called “babe” – involved worse conduct than I expected based on the tweet.  Aziz Ansari was oblivious to a woman’s desires not to sleep with him, and kept pushing her to do so in fairly objectifying ways.  That said, her description of the story was much worse than the actual events.  The woman, who remained anonymous to protect her own identity, never actually had intercourse with Ansari, and appeared to consent to a range of activities that required her participation.  Nonetheless, she called the incident “sexual assault,’ despite the fact that she did not leave the apartment (until she decided to) or clearly say, “no.”  Sexual assault, to this woman, occurred because Ansari ignored her “clear non-verbal cues.”  He also kept attempting physical intimacy despite some less obvious verbal cues, like telling Ansari that she didn’t want to feel “forced,” because then should would hate him.

I think it is time, at this cultural moment, to define and analyze the proper legal definitions of terms like sexual assault and sexual harassment.

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The Fire and Fury over “Fire and Fury”:  President Trump’s Legal Claims.

President Trump has now sent “cease and desist” letters to former White House Chief Strategist Stephen Bannon, author Michael Wolff, and publisher Henry Holt & Co. over comments Bannon made in a forthcoming book, Fire and Fury: Inside the Trump White House.  According to the cease and desist letter, comments Bannon made to Wolff, excerpted in a New York magazine article, violated a non-disclosure agreement forbidding Trump’s staff from making disparaging remarks about the President, his family, and the Trump campaign.  Bannon made comments to Wolff that, among other things, labeled a meeting between Donald Trump, Jr. and the Russians, “treasonous,” and “unpatriotic,” and called Ivanka Trump, “dumb as a brick.”

President Trump and his attorney believe he is entitled to monetary damages and injunctive relief for Bannon’s disparaging and libelous comments.  Injunctive relief would block further release of Fire and Fury and prevent Bannon from making further disparaging comments.  The analysis of whether President Trump can stop publication of disparaging comments from Bannon involves two parts (1) does Trump have a meritorious claim, and, if so, (2) what are Trump’s remedies – i.e., can he block further release of the book.

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What Makes a (Legal) Academic

The legal academy has long had an identity crisis, and there is decreasing faith among many Americans in the academy generally.  A more deliberate, more cooperative discussion about what makes a legal academic — and what separates an academic from an advocate, social commentator, activist, or politician — would go a long way to ameliorating some of the, often well-founded, credibility concerns.

The legal academy’s project sits at the intersection of the academic’s general search for truth, the practitioner and the judge’s desire for synthesis and illumination of legal doctrine, and the lawmaker’s goal of reform.  This uncomfortable intersection makes legal scholarship valuable, so long as legal academics distinguish themselves, both as legal experts and as academics.  A true distinction requires that legal academics both use the skills they uniquely possess and approach their scholarship and teaching with intellectual honestly.

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Teaching Critical Reading, Deductive Reasoning, and Systemic Thinking — To Cure Our Broken Political Culture

The increased democratization of the Internet and exposure to a wide array of political opinions appears to be creating less sophisticated, less thoughtful, less rational, angrier political engagement.  There are many reasons for this unfortunate and counterintuitive phenomenon, despite the general wisdom of crowds.  Of course, there is the increasing selection bias in what people read, and there is confirmation bias in what information people credit.  I think a major, insufficiently discussed factor is that people are not reading in a way that allows them to truly absorb others’ perspectives.  Many political discussions fail to impart growth, or even understanding, on its participants because we are not truly appreciating what the other party is expressing.

This semester, I taught a companion class to my Torts class, called Torts Lab, where we focused on critical reading, critical thinking, and critical writing skills.  Many smart students enter law school and other graduate programs without these skills developed.  In teaching Torts Lab, I learned a fair bit about meta-cognition, how we think about how we learn.  I want to share some lessons I learned from teaching Torts Lab.  Below is what I have discovered about where students go wrong in their reading, and how teaching better critical reading and thinking skills can lead to a better understanding of each other and the world around us.

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