A University of Oregon Law professor has been placed on paid administrative leave for dressing in blackface at an off-campus Halloween party attended by faculty and students. Her intention was to portray the author of a book, Black Man in a White Coat, which chronicled the racism the author, Dr. Damon Tweedy, experienced as a student at Duke Medical School. A letter written by 23 faculty members has asked for the professor’s resignation, and a petition signed by over 500 students and alumni supports that push.
Category: Uncategorized
On Tuesday, I will be voting for President. Although I am less politically engaged than the median law professor (to me, politics necessitates partisan, unprincipled, opportunistic behavior, and the law, at its best, manifests beautiful, clear, logically evolving rules), this election is too important. Plus, I am now an Ohio voter. I will even encourage students to accompany me to the nearby polling place so they can vote. But I will not be sharing with the students the candidate for whom I am voting. I will not even express pleasure or displeasure at the election results, despite the fact that I believe this election is both symbolically and practically monumental.
Continue reading “One Speech-Torts Professor’s Thoughts on Handling the Upcoming Election”
Can you find all of the torts references in this costume? Answers below.
Today in torts class, I taught Palsgraf, the classic duty/proximate cause case that illustrates the difference between Justice Cardozo’s somewhat formalist bent and Justice Andrews’s stark legal realism. I told my class that everyone falls along the spectrum somewhere from the most process-based, almost transcendental formalist to the most practical politics legal realist. Here’s a quiz I created last year to determine where you fall.
Assign a numeric value to each question.
5 = Strongly agree
4 = Agree
3 = Neutral
2 = Disagree
1 = Strongly disagree
- The life of the law is not logic, but experience.
- Law is not a science; you cannot just apply a formula and divine the right answer.
- Legal reasoning is not inherently self-justified; we have to look elsewhere (to sociology, political science, philosophy) to give legal concepts meaning.
- There is no such thing as a neutral, objective assessment of the law.
- The state action doctrine makes no conceptual sense; it is designed to oppress the disadvantaged and maintain our current power structures.
- When a court flagrantly violates precedent to do what it knows to be right (and I agree with that conception of right), I feel happy.
Down by a 9, you’re quite the formalist (that is my score – although that’s what I got last year and may have moved more realist this year. [Edit: I am now an 11].). The highest scores I’ve seen are in the mid to high 20s.
Suggestions welcome!
Readers’ comments about the quiz added after the jump:
Part One: The Weighty Legal Questions
Last month, the Supreme Court granted certiorari to review Lee v. Tam, a case about whether the federal government can deny registration to trademarks that disparage individuals or groups. At issue was the United States Patent and Trademark Office’s denial of trademark registration to a band called The Slants, a name that was intended to reclaim and de-stigmatize an Asian stereotype. The Slants appealed the denial of its registration application. The Federal Circuit Court of Appeals, sitting en banc as a full court, held that the denial of a trademark registration on the basis that it was racially insensitive violates the First Amendment. The Federal Circuit applied strict scrutiny to find that the disparagement clause of the federal trademark registration statute discriminates against speech on the basis of viewpoint and is therefore unconstitutional.
This case will decide many weighty legal questions, such as (1) does the First Amendment even apply to trademark registration, (2) is the denial of a trademark registration benefit treated differently than a direct penalty on speech, and (3) are trademarks purely commercial speech that are not subject to the highest constitutional scrutiny.
The facts of this case are particularly striking, because the trademark for the band The Slants was registered by Simon Shiao Tam to make a statement against racism and stereotyping. But if the Patent and Trademark Office deems a brand or product disparaging to consumers, the PTO can deny trademark registration. The outcome of Lee v. Tam will also have implications for the Washington Redskins, whose trademark registration was cancelled as being disparaging to Native Americans, and whose case is pending before the Fourth Circuit. The government’s position, that “the Constitution does not require Congress to open the federal trademark registration system to racial epithets,” applies to The Slants and the Redskins, despite the difference in how the names may be considered disparaging, and to many others applying for trademark protection. A separate provision of federal trademark law, which prevents registration of scandalous or immoral matter, might also be vulnerable to invalidation if the disparagement clause is deemed unconstitutional.
This case will decide sweeping issues of government power to regulate speech when the government creates a system that gives procedural and substantive benefits to some speech and not others. The right not to have one’s speech discriminated against on the basis that someone at the PTO finds the speech disparaging is countered by the government’s interest in disassociating its federal trademark registration system with what many might consider a racial slur. In Part One of a series on this case, I will provide a broad overview of the legal issues. Subsequent parts will delve deeper into the doctrine, precedent, and implications of the case.
In the third Presidential debate, Clinton and Trump essentially repeated their thoughts about what they want in a Supreme Court nominee. But, as their answers indicate, they were asked the wrong question. What we must demand of anyone appointing a Supreme Court Justice is, specifically, where do their views of the Constitution depart from their own political opinions.
In answer to the less pointed question they were asked, Trump again invoked his love affair with the Second Amendment (“and all amendments”) and then made some largely contentless statements about the respectability of the Justices he wishes to appoint. Clinton reiterated that she wants someone to “not reverse” Obergefell and Roe yet “stand up against” (i.e. reverse) Citizens United – this time her language evinced some awareness of how anathema it is to rule of law principles and the legitimacy and consistency of the law to overturn precedent simply based on disagreement (especially while simultaneously wishing to insure the longevity of precedent you like).
Last night’s Presidential debate featured an uncomfortable amount of ugliness and shallow, canned, unrelentingly one-sided answers to important questions, but one bright spot was the candidates’ takes on what kind of Supreme Court Justice they would appoint to fill Justice Scalia’s vacancy. Although I disagree with much of what both candidates profess to be looking for, an exploration of their differences highlights the polar perspectives politicians have on an appointment process that is too politicized.
Continue reading “Clinton v. Trump on Supreme Court Justices”
Yesterday, I received an email with the subject line “Timely Warning Notice” from campus Security at the private institution where I work as a law professor. The email, directed to the entire campus community, mentioned that my university received a call regarding a “possible clown sighting.” Campus Security is now investigating the incident, and “[a]nyone found dressing as a clown on [] campus will be processed with the local authorities.” I was immediately concerned – not about clowns, but about misleading students about their constitutional rights.
There is currently an epidemic of creepy clowns (if that isn’t redundant) terrorizing the country- some are harmless pranksters who enjoy dressing like a Stephen King nightmare while others are making actual threats of violence. The moral panic that you might imagine creepy terrorist clowns would induce is exacerbated by the fact that false reports of clowns luring children into woods or kidnapping people are also being filed with police.
Campus security wants to inform students that they have recourse against individuals purposely creating panic and fear, and that is a laudable goal. But what a private university can do to avoid the clown terror that has swept the nation is a complicated question.
Continue reading “Policing Clowns on Campus: What Is and Is Not Constitutional (and what is murky)”
France made headlines (and waves) last month after its burkini bans yielded photographic evidence of police officers forcing women to take off clothing on public beaches. Now, France’s highest administrative court (and other French judges) have begun invalidating these bans, instituted by 30 cities in France, that prohibit publicly wearing burkinis. Yet French citizens are still threatening to call the police on women wearing burkinis — swimwear, donned mostly by Muslim women, that covers everything but the face, hands, and feet.
In America, a ban on wearing religiously-affiliated clothing would be unlikely to succeed legislatively, and would certainly be invalidated judicially as both free speech and free exercise First Amendment violations. However, there are lessons we can learn from France’s struggles with the burkini ban as our First Amendment jurisprudence and free speech culture evolves. France’s reasons for implementing the burkini ban are echoed across the political spectrum: in calls to censor pro-Trump chalkings on university campuses and in approval of police officer’s denial of protection for football players who refuse to stand for the national anthem. And France’s staunch secularism conflates state refusal to ban religious clothing with state endorsement of religion, just as some scholars and critics of our current First Amendment doctrine believe that the failure to ban particular speech is tantamount to approving of such speech. In essence, France’s burkini ban debacle illustrates why attempts in this country to abridge speech some find offensive, un-American, or regressive are ultimately intolerant and misguided. The existence of the ban also shows the importance of distinguishing between state action and private action in determining when our liberties are restricted.
Continue reading “First Amendment Lessons From France’s Burkini Ban Debacle”
Time recently described the frequency and ferocity with which Internet users, often women, members of racial, ethnic, religious minorities, and members of the LGBT community, experience Internet trolling. Speech, ranging from vitriolic personal attacks, to racial and religious slurs, to threats of rape, to the development of slang terms like “cucks” to describe male feminists, to disclosure of personal contact information, causes many Internet users to avoid certain topics or disengage from the Internet community or public life. Internet trolling, according to the Time piece, is “the main tool of the alt-right” (famous for the men’s rights movement and anti-immigration views). Trolling is used as a way to voice displeasure against an all-female Ghostbusters and to galvanize support for controversial views.
In many ways, this type of speech is contrary to the ideal of public discourse that is civil, well-informed, sophisticated, and inclusive of a diversity of perspectives. In some cases, such as where the speech would cause reasonable fear for one’s immediate safety or would incite others to cause imminent physical harm, the speech loses its protection and becomes criminal behavior. However, because of our free speech protections, most of the trolling speech, even truly horrendous speech that gets very close to the line of threatening or inciting, cannot be prohibited. In essence, then, Time is arguing that our highly protective free speech doctrine can be counterproductive to social discourse and civic betterment. But what the Time article misses is both the importance of allowing this speech as a matter of First Amendment doctrine and the importance of the speech itself as a matter of free speech values.
Continue reading “What Time Misses about the Free Speech Benefits of Internet Trolling”
In A Crowded Theater 