Month: February 2018

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.

Continue reading “The Internal Inconsistency in Abood – and What It Means for Janus”