Category: Uncategorized

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:


  • 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.


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.


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:


  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.


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?

  Continue reading “Criminal Procedure Spring 2020 Final Exam”

Trump’s Executive Order on Social Media Platforms and the Communications Decency Act

An excellent student in my First Amendment class emailed me yesterday to ask whether Trump’s executive order on social media violated Twitter and Facebook’s First Amendment rights.  This is a complicated question worthy of sincere analysis.  Since the question of the executive order’s constitutionality came to me from a former student, and has not yet been resolved by the courts, I will approach it like a law school hypothetical.

The Facts:  This Tuesday, Twitter added a “fact check” label to two of the President’s tweets about mail-in ballots and voter fraud.  President Trump believes the social media platform is displaying an anti-conservative bias in labeling certain tweets as false and adding its own editorial content to only some tweets, while ignoring others that may also be misleading.  The President argues that Twitter is no longer acting as a neutral arbiter when allowing others to post content to its site.  (Facebook’s Mark Zuckerberg disagreed with Twitter’s approach, noting that “I just believe strongly that Facebook shouldn’t be the arbiter of truth of everything that people say online.”)

Continue reading “Trump’s Executive Order on Social Media Platforms and the Communications Decency Act”

First Amendment Final Exam

The town of Goldbergia has a mayor, Ferica, who is a member of the FreeSpeech religion.  Ferica and other adherents of FreeSpeech believe that their lives should be dedicated to enhancing the search for truth through an open marketplace of ideas.

Ferica is quite popular as a mayor.  Her latest initiative involves making the town a more pluralistic and open place for civil discourse.  In 2020, for example, she and the town board passed the following legislative acts.  (1) No one is permitted, within 50 feet of a public park or on public park grounds, to tell another person to shut up or that their ideas are stupid.  (2) Residents cannot exclude guests from their dinner parties simply because they disagree about politics.  (3) Public school teachers for elementary schools must explore both sides of every issue when teaching history classes.

In addition, Ferica learns that members of an adversarial religion, the Roederers, have begun moving into Goldbergia to perpetuate their opposing religious views, that the First Amendment is a sham making all of society worse.  Ferica takes quick action and helps pass a law that (4) bans book burning, a ritualistic practice of the Roederers.  She also (5) places a monument outside city hall that is a giant number one, standing 15 feet tall, in honor of the First Amendment.

Christopher, a member of the Roederers and a public school teacher, challenges all five of these actions by the town of Goldbergia.  Go through each action, one by one.  State what challenges Christopher is likely to bring and whether the town’s actions are likely to withstand constitutional scrutiny.  Some government actions may have multiple bases for constitutional challenge; others will have one potentially valid constitutional challenge.   Assume there are no issues with standing.

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Telephonic Oral Argument Allows Justices to Explore Neat First Amendment Puzzles

Today, the Supreme Court heard oral argument by telephone, live-streamed to us eager listeners, in Barr v. American Association of Political Consultants.  Because this case was about a ban on robocalls, which, as Justice Kavanaugh mentioned, everyone hates, the Justices deliberated over pure, legal puzzles with no obvious political valence.  Instead of dividing the Court on a hot-button political issue, this case will accomplish something more fundamental and legally interesting.  The Justices must decide the correct conceptual First Amendment framework to apply to cases involving a bans on the “manner” of speech (here, automated calls are prohibited) where the statute later adds a “content-based” exception (except if the call concerns a debt owed to or guaranteed by the federal government).

Before tackling the legal intrigue of the case, I want to say a word about telephonic oral arguments.  The format, where the Justices each get about two questions and answers per side before Chief Justice Roberts firmly interrupts counsel and moves to the next Justice, has some virtues.   Each Justice must grapple with the weaknesses of both sides.  The format forces them to work together, ideology aside, to answer tough legal problems instead of fighting for air time.  The telephonic oral arguments are yet another example of how technology and social isolation have combined to make people kinder and more cooperative.  Of course, argument is less lively, and it is difficult to get too much momentum on any given topic, but the Chief has an uncanny way of stopping a litigant right when the attorney has provided a semi-satisfactory answer.   Plus, as an added treat, Justice Breyer was not on the line when it was his turn to ask Respondent questions because he received another telephone call, but, as he noted, not an automated call.

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Coronavirus Protesters, Free Speech, and the Nature of Liberty

Until today, I had refrained from blogging about the coronavirus.  At this epidemiological moment, in the language of Ohio’s Stay at Home Order, the nuances of constitutional law doctrine did not seem “essential.”  A highly contagious, novel virus has killed over 40,000 Americans in just a few months.  Many grieving cannot have proper funerals or hug their loved ones.  Without social distancing measures, our health care system will be even more overloaded.  People are scared and alone.  Over the past few weeks, I continued teaching my students about the Establishment Clause and the Sixth Amendment’s right to counsel, but I can understand why these topics seem a bit irrelevant right now (students, if you are reading this, study hard for your finals.  Everything will matter in the end!).

However, happily and unhappily, the Constitution is always relevant.  This month, constitutional challenges were raised when cities tried to prohibit parking lot Easter services.  Currently, the issue of the constitutional rights of the protesters gathering in violation of social distancing laws – to protest those very social distancing laws – must be resolved.  In a very practical sense, we must decide whether the First Amendment’s rights of expressive association and free speech supersede social distancing and shut down orders.  And, as with any legal issue, resolution of the practical requires thinking deeply about the theoretical.  We must also contend with the nature of liberty, a term that is used reflexively yet has so many different meanings.  In this blog, I want to discuss the free speech implications of those protesting shut-down orders and also proffer my own conception of how liberty fits into these discussions, despite the urgent public health crisis we are facing.

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