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” →

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.

Continue reading “Larry Nassar and the Purpose of Criminal Proceedings” →

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.

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

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.

Continue reading “Aziz Ansari and the Legal Definitions of Sexual Assault and Harassment” →

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.

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

This year brought some tremendous changes in the landscape of First Amendment doctrine and free speech values.  Below is a high/lowlight of this year’s free speech developments, updates on previous posts, and some projections for the future.

Continue reading “2017 Wrap-Up and Projections” →

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.

Continue reading “What Makes a (Legal) Academic” →

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.

Continue reading “Teaching Critical Reading, Deductive Reasoning, and Systemic Thinking — To Cure Our Broken Political Culture” →

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

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

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

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

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

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

Continue reading “Conversation with Uber Driver as Socratic Dialog on Masterpiece Cakeshop” →