One of the loveliest challenges about the law is that everyone has a different vision of what it is. At the most abstract level, people disagree about how law gets its authoritative force. Legal positivists believe that law gets force when officials follow the social custom for making an enactment authoritative, while natural law theorists believe that law’s authority is limited by rights we are owed based on our humanity. Scholars throughout American history have also disagreed about the role of the judge and the appropriate parameters of legal reasoning and argument. Each age brings new views about the life of the law- what it is, how we should approach it, and which factors should affect judicial decision-making. I find it both delightful and sometimes maddening that everyone has a different vision of what judges do and how we should assess judicial opinions. Accepting a diversity of approaches to jurisprudence, broadly defined, here are my biggest pet peeves in evaluating judges. I believe these missteps obscure the complexity of the law and the nature of the judicial exercise. These errors also add cynicism and partisanship to the evaluation of judges, both of which may make judging worse, even if some cynicism and partisanship is either necessary or desirable.
Justice Scalia’s passing is a monumental event, and many important voices have remarked upon his legacy as a jurist, his exemplary friendship with judicial foe Justice Ginsburg, and the fate of close, controversial cases given Justice Scalia’s vacancy on the Supreme Court. Partisans have also inserted their opinions about whether President Obama should fill Justice Scalia’s seat before the President’s term ends. In my shock and sadness over Justice Scalia’s death, I have really enjoyed reading the myriad views on Justice Scalia – the essays that are scathing, the pieces that are laudatory, and the articles that offer a complicated depiction of the Justice. I write now to share how my (one-sided) relationship with Justice Scalia has both tracked and transformed the lawyer and teacher I am today. This is personal.
Continue reading “My Thoughts on Justice Scalia (From Law School Until Now)”
Uber, the company that allows consumers to procure rides using a cell phone app, has invoked the First Amendment in an attempt to overturn court orders regulating its communications with drivers. My tentative view is that Uber’s First Amendment interests are minimal and should not defeat the court orders. Uber may have a better claim that the district court’s rulings contravene the Federal Arbitration Act, which places arbitration on equal footing with judicial proceedings, because the court is discouraging arbitration in favor of litigation. However, the Ninth Circuit should rule against Uber on its First Amendment claim. Uber’s case is distinguishable from cases involving restrictions on communications between lawyers and their own prospective clients. The case is also distinguishable from regulations compelling commercial disclosures to consumers on controversial topics.
A few months ago, Yale University became the epicenter of a debate about potential tensions between free speech and equality. An Associate Master of one of Yale’s residential colleges resigned after protests sparked by an email she wrote to her residents. The email was a response to a campus-wide email by the administration urging students to avoid culturally insensitive costumes. Her response indicated that, in the spirit of free expression and youthful exploration, her residents could experiment with edgy, offensive Halloween costumes. The ensuing outrage about her email and the racial climate at Yale came on the heels of another widely reported protest. Video footage went viral when a professor, who had joined activists seeking to raise awareness about racial issues at the University of Missouri, attempted to remove a student journalist from a public space. These incidents solidified the terms of a longstanding debate between free speech and equality. Free speech has the power to seriously degrade others on the basis of race or other immutable characteristics. Free speech also disrupts the safe spaces that some members of vulnerable minority groups desire to share their own ideas. These incidents framed the choice as a dichotomous one between free speech and the equality or dignity of members of minority groups. As a matter of both constitutional law and sound policy, I believe we need to reframe the terms of this debate.
The choice between free speech and equality is a false one, both from legal and policy perspectives. Arguments that courts should balance away our strong free speech protections in the name of unspecified equality or dignity interests would complicate and distort constitutional law, and may be counterproductive.
President Obama’s Office of Civil Rights has made reducing sexual assault, and specifically campus sexual assault, a priority. The government’s narrative surrounding campus sexual assault has resulted in concentrations of power in governmental agencies and university administrators who, in my view, are promoting civil rights at the expense of important civil liberties. The treatment of campus sexual assault, both by the government and by some journalists, shows an unfortunate inclination to prioritize one’s policy agenda over truthful discourse and democratic engagement on a subject. The narrative, media reporting, and even statistics presented on campus sexual assault are so politicized, it is currently impossible to know how to strike the right balance between the civil rights and civil liberties implicated in investigating and punishing campus sexual assault. Unfortunately, many fervently trying to solve the problem of campus sexual assault have obscured the contours of the problem.
Continue reading “The Treatment of Campus Sexual Assault: Misinformation has Real Costs”
After SCOTUSblog announced that it would be providing only facts and no analysis of cases involving the law firm that financially supports the blog, commentators questioned the viability of SCOTUSblog’s mission to provide objective, impartial coverage of Supreme Court cases. One legal blogger went further to argue that there is “no such thing as viewpoint neutrality in any form of publishing,” and that the blogging revolution has released us from having to hide behind “false objectivity.” I disagree. Although neutrality is impossible to achieve, objectivity is an honorable aspiration that betters the quality and trustworthiness of news or analysis. The difference between the approaches of the sensational docu-series Making a Murderer and the popular podcast Serial reveal important lessons for maintaining objectivity in legal blogging — and extend beyond, to legal teaching and approaches to the law generally.
Continue reading “Serial versus Making a Murderer: On Neutrality, Objectivity, and Legal Writing”
Although designed to protect competition, false advertising law protects consumers from our own ignorance. This somewhat paternalistic approach is evident in the lawsuits against Chobani by Dannon and Yoplait. Chobani’s competitors claim that Chobani falsely advertised that Dannon’s artificial sweeteners and Yoplait’s preservatives are unsafe. Chobani tried to capitalize on our collective distrust of artificial ingredients, and a federal court has intervened. These lawsuits illustrate our current thinking on the “marketplace of ideas.” Unfortunately, the intersection of the commercial context and the First Amendment demonstrates that the law actually does not believe in the public’s ability to uncover the truth.
Justice Alito claimed during his confirmation hearing that “results-oriented jurisprudence is never justified because … we are not policymakers.” In the ten years since Justice Alito’s confirmation, he has been labeled by many on the left as one of the most politically motivated on the Supreme Court. I think the American public is too cynical about the SCOTUS Justices. Advocacy groups and the media focus on the results of an opinion more than on its reasoning, leading the public to perceive Justices as being overly motivated by result. That said, although there may be results-neutral methods to Justice Alito’s jurisprudence, there are reasons to be skeptical of his approach to the First Amendment.
Continue reading “Justice Alito after Ten Years: First Amendment Coherence?”
The Supreme Court will soon consider whether it should grant the cert petition in Electronic Arts v. Davis, a Ninth Circuit case involving whether a football video game manufacturer is liable for using the numbers and likenesses of retired football players. The manufacturer, Electronic Arts, already pays the NFL to use the names, likenesses, and numbers of current football players. However, Madden NFL, the game at issue, also features historic teams with the numbers and descriptions of former players. Around 6,000 of these former NFL athletes have now sued EA, claiming that the game infringes their right to publicity. (If EA instead has a First Amendment right to use the public information about former players, it likely can use current players’ names and numbers as well, and its current licenses may be overly cautious.) Although Madden NFL isn’t a perfect vehicle for deciding when free speech rights trump the right to publicity, it’s a good enough case for the court to at least articulate what test should apply. The Court should grant certiorari in Davis. The time to resolve the circuit split on free speech versus the right to publicity is long overdue.
Ted Cruz’s accusation during the Republican debates that Donald Trump embodies “New York values” has been called anti-Semitic, anti-New York, and both smart political strategy and poor political strategy. Although many have rightfully decried the crassness, ignorance, and reductionism of the comment, I believe the sentiment an indictment of so much more than Cruz. Cruz’s tossing around of “New York values” is an indictment of the simplistic, polarizing political rhetoric that pervades our conversations, but its effectiveness reflects the reality that there are many on the right and the left whose lives and views have come to personify this rhetoric.
I am from New York. I lived in Canarsie, Brooklyn as a child. My great grandparents came to Brooklyn from Eastern Europe, and each generation expanded the opportunities for the next. My mother grew up in the projects (NYC public housing) and went on to get her Master’s in Education. My father began at community college and eventually earned his MBA. As a child, I took baths in the kitchen of my grandmother’s tiny Chinatown apartment. Although I currently live in Boston, the actual enemy of New York, I still salivate when I think about buying a pretzel or a knish on the streets of Harlem, where I lived as an adult. My mother, my father, my brother (who lives happily in California), and I all have varying political views (although admittedly we’re mostly left of center), and there’s always lively debate. My Dad, who used to work on Wall Street, loves Bernie. I am an ardent supporter of broad free speech rights, which often places me at odds with second-wave feminists. None of us is particularly materialistic. Velveeta Shells and Cheese is my favorite food. I share an apartment with two guys and one bathroom. The only values we all share are a desire to be educated, a commitment to explore our passions, and a willingness to laugh at each other. It’s easy to say that Ted Cruz is factually and morally wrong to generalize, looking only at my family, a bunch of New York Jews.
But, in fact, Ted Cruz and his supporters may be responding to a caricature partially put forward by the left. In their efforts to fully promote gay marriage, many on the left do want to force individuals in business to provide services for gay weddings. And perhaps in response to the extreme anti-abortion stance of the right (where many Republican candidates for president wanted to ban abortion even in cases of rape or incest), many on the left clamor to celebrate (or take any possible moral questions out of) abortion. A Facebook post that received 86,000 shares and likes proclaimed that “I don’t care if [Planned Parenthood] is a million-story abortion superpark with abortion waterslides and an abortion electrical parade.”
Although marriage equality is a no-brainer, there are conversations to be had about religious liberty. And abortion is complicated. I am highly pro-choice, but I don’t think abortion should be celebrated. I do not have the view that some form of life hasn’t been terminated, and I have not become callous to the implications for our humanity. It’s unclear how many people actually would enjoy an abortion superpark, but I can understand why so many conservatives think liberals have lost their values. The conservative response, unfortunately, has been to erect unreasonable, pretextual barriers to deter women from exercising their legal rights.
As a free-speech lawyer, legal fellow, and lecturer on writing, I would like to use this platform to complicate the rhetoric espoused by both the right and the left. The only cause to which I unflinchingly adhere is broad free speech protections. This blog will be a place to openly and candidly explore the nuances of current legal issues, especially those relating to First Amendment rights and tort law, without getting bound up in reactionary polarization. I am an extreme moderate on most issues, but I am open to debate!
