The Faculty Lounge

Thompson v. Clark & the "indications of innocence" standard under Section 1983

I wanted to share this excellent op ed piece by BU Professor Jasmine Gonzales Rose about the unfair "indications of innocence" standard used by some Circuits in Sec. 1983 actions and the pending Supreme Court case, Thompson v. Clark, which could change it. https://lnkd.in/dCRg9S-D #policeaccountability #criminaljusticereform #section1983

More on the A/B Illusion: IRB Review, Debriefing, Power Asymmetries & A Challenge for Critics

Here are a few clarifications and further thoughts arising out of my co-written Sunday NYT op-ed based on my forthcoming law review article (here, I speak only for myself, and not for my op-ed co-author).

First, as is usually the case with op-eds, we didn’t write, or even have any advance notice of, the headline. It’s easy to see why the Times chose it, as it’s clickbaity, but “Corporations, Please, Experiment On Us. You don’t even need our consent” is not very reflective of the nuances of our position. Now on to some of those nuances.

A Clarification About the Op-Ed’s Position on IRB Review and Debriefing

On Twitter, James Grimmelmann worries that New York Times readers will interpret one part of the op-ed, as he did, to be making a problematic claim. In the piece, we ask readers to imagine a hypothetical CEO who worries that some of her employees aren't taking optimal advantage of the company's generous 401(k) matching program. She has a hunch that adding to the usual matching letter information telling each employee what his or her similarly-aged peers are saving would nudge the low-savers to save more. We explain that the CEO could implement this peer information letter policy in the next enrollment cycle and observe the result, but that, regardless of whether savings went up or down, she'd never really know what effect, if any, the policy had without running a randomized, controlled experiment in which half the employees receive letters with no peer information and half receive letters with peer information. We also explain that telling employees in advance about that the company would be sending out different letters and why would badly bias the results by altering employees’ behavior. We then explain that our hypothetical CEO isn’t so hypothetical:

Economists do help corporations run such experiments, but many managers chafe at debriefing their employees afterward, fearing that they will be outraged that they were experimented on without their consent. A company’s unwillingness to debrief, in turn, can be a deal-breaker for the ethics boards that authorize research. So those C.E.O.s do what powerful people usually do: Pick the policy that their intuition tells them will work best, and apply it to everyone.

It is this paragraph that has James worried:

Your argument appears to run: (1) people will be outraged about being experimented on if they're debriefed; (2) managers "chafe" at de-briefing because of the outrage, (3) IRBs would require debriefing; so (4) it’s reasonable for companies not to go through IRBs at all [and to conduct the nonconsensual A/B test of 401(k) letters with no debriefing afterward].

(The above is three tweets strung together but otherwise verbatim; the bits in brackets are my words, but I think they fairly reflect James’s other tweets and the logic of his argument. I trust he’ll tell me if I’m wrong.)

To be clear: No, this is not the position we intended to take in the op-ed. I thank James for bringing this possible misreading to my attention so that I can correct it here, at least. More after the jump.

New York Times Op-Ed on the A/B Illusion

I have an op-ed with Christopher Chabris that will appear in this Sunday's New York Times on one theme in my recent law review article on corporate experimentation. Despite the rather provocative headline that the Times gave it, our basic argument, made as clearly as we could in 800 words, is this: sometimes, it is more ethical to conduct a nonconsensual A/B experiment than to simply go with one's intuition and impose A on everyone. Our contrary tendency to see experiments—but not untested innovations foisted on us by powerful people—as involving risk, uncertainty, and power asymmetries is what I call the A/B illusion in my article. Here is how the op-ed begins:

Can it ever be ethical for companies or governments to experiment on their employees, customers or citizens without their consent?

The conventional answer — of course not! — animated public outrage last year after Facebook published a study in which it manipulated how much emotional content more than half a million of its users saw. Similar indignation followed the revelation by the dating site OkCupid that, as an experiment, it briefly told some pairs of users that they were good matches when its algorithm had predicted otherwise.

But this outrage is misguided. Indeed, we believe that it is based on a kind of moral illusion.

A Bisexual Plaintiff’s Employment Discrimination Victory in Flood v. Bank of America

In a little noticed decision issued a couple of months ago, the First Circuit reinstated a bisexual plaintiff’s employment discrimination claims under the Maine Human Rights Act, reversing the district court’s dismissal on summary judgment.  The decision is remarkable because, as I and Dr. Karen Yescavage discuss in our recent law review article, despite the fact that bisexuals experience significant levels of discrimination, they rarely sue.  Even more concerning is the fact that, when they do sue, they almost never succeed.  Indeed, the only employment discrimination case Dr. Yescavage and I found in which a bisexual plaintiff had ultimately succeeded on the merits was decided by a British court.  To be sure, the First Circuit decision in Flood v. Bank of America Corp., 780 F.3d 1 (1st Cir. 2015), is not a final victory for Shelly Flood.  Instead, it only means that she may present her evidence to a jury, but, given the dearth of case law involving bisexual plaintiffs, it is highly significant.    

The evidence supporting Shelly Flood’s termination and harassment claims (both rooted in allegations of sexual orientation discrimination) appears fairly strong.  Ms. Flood presented evidence to the effect that one of her supervisors (who was also her assigned mentor) began to treat her drastically differently upon learning that Ms. Flood was having a romantic relationship with a woman and that this supervisor enlisted other bank administrators to engage in similar treatment.  The negative treatment Ms. Flood describes includes suddenly receiving poor performance evaluations, being subjected to retroactive changes in evaluations, and receiving “cold stares . . . and disparaging comments about [her] eating habits, dress, and hair style.”  780 F.3d at 13.  According to Ms. Flood, this negative treatment eventually reached such an egregious level that she could no longer bring herself to go into work. 

The First Circuit held that the district court had wrongly dismissed the discharge claim because it erroneously interpreted the claim as one of constructive discharge (rather than actual discharge) and that it had wrongly dismissed the harassment claim based on its mistaken conclusion that the harassment was not severe or pervasive.  In response to the Bank’s argument that Ms. Flood’s claim failed as a matter of law because she was “not exposed to explicitly homophobic statements or derogatory remarks,” the First Circuit noted that many employers now “know better than to spew explicitly . . . homophobic remarks . . .” and that “the absence of such blatant vitriol does not doom a claim of discrimination.”  Id. at 10-11.

All in all, the First Circuit’s analysis is well-reasoned and the result, especially with respect to the harassment claim, may seem unsurprising.  But, as a precedent for bisexual plaintiffs bringing sexual orientation employment discrimination claims under state laws (which tend to be similar in structure to federal law), this case is huge news.  To be sure, the case involved a fairly straightforward type of discrimination—homophobia.  As Dr. Yescavage and I discuss, bisexuals appear to be subject to two primary forms of discrimination:  homophobia and biphobia, the latter of which involves fear and discomfort specifically related to bisexuality.  Biphobia may be particularly hard for courts to understand, as the limited case law suggests.  See, e.g., Apilado v. North Am. Gay Ameteur Athletic Alliance, 2011 WL 5563206, at *1–3 (W.D. Wash. Nov. 10, 2011).  However, the significance of Flood should not be underestimated.  For now, it stands as the strongest precedent available for bisexual victims of employment discrimination in the United States.

The Untimely Death of Freddie Gray and Baltimore’s “Troubles”: A Few Comments from the Trenches – Part I

 

Taunya Lovell Banks

The law professor blogs have been largely silent about the sad and troubling events stemming from the arrest and death of Freddie Gray in Baltimore so I want to thank Dan for giving me this space to comment on Baltimore’s “troubles.”    Having lived through the D.C. riots in 1968 while I was in law school I am hesitant to call what happened last Monday a riot, a civil disturbance is a more accurate term.  But I prefer to refer to the turmoil surrounding the arrest on April 12^th and untimely death of Freddie Gray on April 19^th as Baltimore’s “troubles” because, as some commentators point out, what happened Monday April 27^th is symptomatic of a larger problem that plagues Baltimore, an old southern industrial city struggling to redefine itself in a post-industrial country.  It is a city with large areas of racially segregated housing, concentrated poverty and misery.  Many of these neighborhoods have not recovered from Baltimore’s 1968 riot.  But Baltimore also is a city with many universities, University of Maryland Baltimore, Johns Hopkins, Morgan State, University of Baltimore, Notre Dame, Coppin State, Loyola and Goucher (in the near suburbs).  It is an arts town, home to great writers, playwrights and filmmakers.  Too often these two sides of the city never meet.

I live less than two miles from the corner of Pennsylvania and North Avenue where the CVS burned last Monday and where crowds rallied throughout last week.  Anyone who tuned into CNN last week saw this corner as the national and international media covered our troubles.  I not so jokingly tell my friends that I live five blocks from The Wire, David Simon’s well-regarded show about some of Baltimore’s communities impacted by intractable unemployment, poverty, drugs and violence, including police violence. Despite the proximity of my relatively affluent neighborhood, composed of stately late 19^th and early 20^th century townhouses and bordered by the Maryland Institute College of Art, I live in a different world from Freddie Gray and his neighbors.  It is easy to live in Baltimore, if you are relatively affluent, and not come in contact with the parts of Baltimore that are hurting.  As one Baltimore resident wrote in Slate, people like me are complicit in maintaining the environment that resulted in Freddie Gray’s death.  But in the end none of us benefit from the way some communities are policed.

Criminal justice and the community

There's been tremendous public outrage lately over the process of criminal justice and its failure to prevent needless deaths.  As illustrated by the recent outcries over the shooting deaths of  Walter Scott, Michael Brown, Eric Garner, and Tamir Rice, the public has a growing desire to have their voices heard in matters of local criminal justice. 

Today, society, media, and politicians pay close attention to the latest high-profile crime, but the general public usually finds itself at a great remove, watching the system from the sidelines.  This is highly frustrating to the average citizen, especially when they want to see wrongdoers go through a public adversarial process.

The public’s growing concerns about the secrecy and the lack of public accountability inherent in our current criminal justice system point to a need for more transparency and a better way to include the local community into adjudications of criminal justice.

In my new book, Defending the Jury:  Crime, Community, and the Constitution (Cambridge UP: 2015), I try to provide solutions to some of these problems by focusing on ways to insert the local community back into criminal justice, whether formally or informally.  I argue that the people's right to participate in the criminal justice system through the criminal jury - a right that is all too often overlooked - is essential to truly legitimizing the criminal process and ensuring its democratic nature.

Leon Nefakh , who writes about criminal justice at Slate, just reviewed the book here, giving one of its major ideas--inserting a plea jury into the plea bargain process--careful, if somewhat skeptical, consideration. 

Ultimately, our system of hidden criminal adjudication is one where decisions concerning life and liberty are made far from the public sphere and the public eye.  This book is my attempt to solve some of these seemingly intractable problems.  And at only $29.95 a copy ($16 on Kindle), it's a bargain!

Inequality and the Workplace: Stetson Law Review Symposium on March 6th.

On Friday, March 6^th, the Stetson Law Review will host a daylong symposium titled:  Inequality, Opportunity, and the Law of the Workplace.  The symposium will explore the relationship between growing economic inequality and the regulation of labor and employment in the United States.  What are the driving forces responsible for widening income or wealth inequality?  Should labor or employment laws be used to counteract income or wealth inequality?  What types of inequality can or should employment laws address?  Can labor or employment laws be effective in reducing inequality, given structural impediments such as globalization and the corporate form’s division of capital from labor?  Panelists will also explore some underappreciated practical and legal limitations on improving the economic mobility of low wage workers, including garnishment laws and the First Amendment’s impact on unionization. 

Wilma Liebman, former Chair of the National Labor Relations Board, is the keynote speaker.  Featured speakers include Timothy Noah, Politico’s Labor and Employment Editor and author of The Great Divergence: America’s Growing Inequality Crisis and What We Can Do About It, and CATO Institute Senior Fellow Michael Tanner.  David Cay Johnston (Syracuse), a Pulitzer-Prize winning journalist and the editor of Divided: The Perils of Our Growing Inequality, will serve as the moderator for a series of panels, which will including Samuel Bagenstos (University of Michigan), Matthew Bodie (Saint Louis University), Charlotte Garden (Seattle University), Dr. Larry Mishel (President, Economic Policy Institute), Paul Sonn (General Counsel/Program Director, National Employment Law Project), Katherine Stone (UCLA), Steven Willborn (Nebraska), and Michael Zimmer (Loyola-Chicago).  Written articles and essays will be published in the Stetson Law Review.   

Kudos to the Law Review and my colleague Jason Bent for putting together such a stellar group.  The entire symposium is available for viewing via live webcast.  For registration or more information about the symposium, go here. 

The Role Law Schools Could Play in Demanding More Transparency in Police Oversight

I am thankful that individuals assume the responsibility and risks of becoming law enforcement officers.  There is no doubt that these people put their lives on the line daily when they wear the uniform and answer the call of duty to protect all of us and ensure a law abiding order.  However, the badge does not entitle law enforcement personnel to be above the law.  Sure there are often tough calls requiring split second decisions that could mean the difference between life and death for the officer or for one or more members of the public (and this is why there is extensive and ongoing training). Of course in hindsight it is easy see mistakes can be and are made, and sometimes actions are taken that deserve greater public scrutiny.  Just like the public sector workforce, who are for the most part, honest and hard-working, so are members of the law enforcement community.  But, when errors of judgment happen, whether intentional or accidental, the public must be assured that full, transparent and unbiased investigations occur.  This is essential to maintaining the public trust.

Demands for transparency are often thwarted by little known statutes that counter the promise of open government (e.g., open meetings law and freedom of information laws).  For example, New York Civil Rights Law 50-a, protects certain police records, including information about internal investigations and discipline, from being disclosed (although when reading the language it appears to apply to the narrow circumstance of personnel records, court interpretations since 1976 have interpreted it more broadly to protect just about anything that could be used to evaluate an officer’s performance).    In it's December 2014 40^th anniversary report, the NYS Committee on Open Government implored the Governor and the Legislature to make it a top priority in 2015 to reform this law, noting that due to the effect of  this statute, “The Freedom of Information Law (FOIL) today affords the public far less access to information about the activities of police departments than virtually any other public agency—even though police interact with the public on a day-to-day basis in a more visceral and tangible way than any other public employees.”  Yesterday’s NYT editorial  called for ending the secrecy on police misconduct, fully endorsing the report’s recommendation.

So, what does all of this have to do with law schools?  The City of Albany’s Citizens Police Review Board is the only police oversight board in the United States at this time that is staffed by a law school, designated by City Law in 2000.  I had the privilege and responsibility of setting this up (see pp 1013-1015).  The experience enabled the law school faculty and students to design and implement an oversight body and process  that was accepted and supported by all impacted stakeholders (City Hall both Executive and Legislative branches, Police Department, Police Union, the Community – advocacy groups and individuals).  Scholarship resulted such as a 2003 issue of the State Bar Government Law & Policy Journal (this may be password protected) and the only book exclusively on police oversight published by the profession.  The existence of a research team for the Board that included law students and faculty enabled the development of significant policing policies in the City addressing things such as racial profiling, early warning systems to identify “rouge” officers (very important given the Court’s interpretation of Civil Rights Law 50-a), cameras in police cars, and the negotiation of the implementation of a mediation program as envisioned in the legislation.   Above all, the law school created a system of transparency through the posting of comprehensive and detailed minutes, ongoing public outreach well beyond the monthly board meetings, and the school was and still is a neutral, non-governmental  office where people in the community can feel safe discussing alleged police misconduct.   Working with the independent Board members and contract investigators, excellent working relationships were established with the City, the Police Department and the Union.  A former student even served on the Board after having been exposed to it as a law student.   With more than 100 oversight agencies in the U.S (and there should be more), it is surprising that there are no other partnerships between law schools and their host communities to work on these issues.  I urge interested law schools to reach out to explore potential opportunities.

Recently I had the honor of addressing students at the NEBLSA annual convention.   In reflecting on the current events in Missouri and New York that highlighted, among other things, the lack of transparency in the grand jury process, I shared the short story of how law schools could work with communities and law enforcement on oversight issues.  More important, attendees were reminded of the important long-lasting power they have to make a difference.  Immediately following the Michael Brown and Eric Garner grand jury decisions, rallies were organized at various law schools and people participated in marches and “lay-downs,” but then what?  Our advocacy surely can’t begin and end with rallies in December 2014. It is now February 2015.  Some law schools have sponsored speakers and organized symposia.  This is a start. Students and faculty so inclined could populate the law reviews and journals with legal and policy analysis that points to options for reform.  Shorter articles in state and local bar journals and newspapers and op eds and postings on appropriate blogs could help to focus ongoing attention to the issue.  Student groups can continue to invite speakers to remind us of the need for reform and to continue to inspire written and verbal advocacy.  In certain courses, such as legislative drafting, students may choose to draft proposed laws to address the needed reform, and then rather than being a mere “academic exercise,” the drafting can be shared with key lawmakers.  In other courses where aspects of the topic are appropriate, students may choose to complete writing requirements that address these issues, and then use these products to not only publish in outlets described above, but enter them into relevant writing competitions.  The above are but a sprinkling of opportunities, and it should be noted, that while my lens in this post is police oversight, the suggestions can more broadly be viewed as ways in which law schools, faculty and students can lead needed reform in myriad areas.  This is absolutely an important part of advanced legal education.  Lawyers are leaders in government and in the community.  People look to us to not only apply the law, but to ensure that when the laws are no longer adequate, we help to refine and reform them.   

EJI Report: Lynching as Terrorism

The Equal Justice Initiative released a major report yesterday on lynching as terrorism, titled  Lynching in America: Confronting the Legacy of Racial Terror.  Like the EJI report from 2013 on the slave trade in Montgomery, this is a remarkable piece of applied history.  It comprehensively documents almost 4000 lynchings of African-Americans as part of the terrorist campaign against blacks to enforce Jim Crow and white supremacy.  Lifting from the EJI web page: 

EJI researchers documented 3959 racial terror lynchings of African Americans in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, and Virginia between 1877 and 1950 – at least 700 more lynchings of black people in these states than previously reported in the most comprehensive work done on lynching to date.

Lynching in America makes the case that lynching of African Americans was terrorism, a widely supported phenomenon used to enforce racial subordination and segregation.  Lynchings were violent and public events that traumatized black people throughout the country and were largely tolerated by state and federal officials.

Bryan Stevenson and the people at EJI do great work in so many areas.  Just based on the summary document available online, there is a lot of important research and analysis in this report.  In addition to the painstaking historical research involved, as a piece of history-based advocacy it makes a powerful case for how capital punishment and the criminal justice system more generally today are the direct consequence of the racial terrorism that was lynching.  The report also advocates for public history and the use of historical markers to remember the victims and the fact of our own collective responsibilities, something about which Al and others on this blog have written about so effectively.  The NYT also has an editorial on the report today that's worth a look. 

Bartlett and Gulati on "Why Do We Allow Customer Discrimination?"

My Durham neighbors Katherine T. Bartlett and Mitu Gulati have just posted an exciting -- and I'd add controversial -- paper called "We do we allow customer discrimination?" Cribbing now from their abstract:

Customers discriminate. They discriminate in whom they buy from, how much they are willing to pay for what they buy, and how they evaluate those with whom they do business—among other things. Anti-discrimination norms in contemporary U.S. society are strong, as reflected by legal constraints on discrimination by employers, providers of public accommodation and so on. But there seems to be an exemption for customers. Why?

One of their proposals might require bundling of purchases as a response to discrimination (such as requiring the purchase of tickets to women's sports teams at the same time customers purchase tickets to men's sports teams.). This leads me to ask if this is really more about redistribution of wealth than about prohibiting/punishing customer discrimination. And if that is the case, perhaps we should just redistribute property outright? A second thought here -- and this likely the only time in my life I have found myself in agreement with Robert Bork; savor this because the moment is unlikely to recur -- but I think we allow customer discrimination because of the core ideology in our country that permits individuals to make choices about how to spend money, whom to associate with, and in what ways.

Download the paper here.

The Long Search

    About six months ago, Al Brophy posted an interesting short piece on African Americans’ difficulties in finding accommodations during the Jim Crow era. In the article, he included a link to the Green Book, a publication from the era that listed where success could be had.

    Al’s piece and the Green Book itself made me wonder about the similar issues that supposedly occurred for Jews as they traveled around the U.S. in the early 1900s. During my upbringing in the 1950s and 60s, I was often told stories, particularly by my grandparents, of how difficult travel was as so many facilities had signs that stated that they were for “Christians only” or other similar verbiage. Similarly, the Green Book stated that “[the] Jewish press has long published information about places that are restricted ...” Well, after an unexpected months-long search, maybe not so much.

    Without a doubt, there are some examples of travel establishments refusing to serve someone because they were Jewish. The most widely known of these events would be the Hilton-Seligman controversy of the 1870s surrounding the Grand Union Hotel in Saratoga, NY. Mr. Seligman, a well-established member of the New York City business community and a Jew, was denied a room in the hotel specifically because of his religion. To assert that this was commonplace, however, cannot be sustained, at least based on the records I have been able to find.

    First, I examined the reference in the Green Book to comparable publications from the Jewish press. I found numerous travel books published during the early to mid-1900s with a Jewish audience in mind. All of these, however, were not oriented towards where Jews could find facilities that would be willing to serve them despite their religion; rather, they were oriented towards where synagogues and Kosher restaurants could be found. Unlike the Green Book, therefore, these travel guides were not to help Jews avoid discrimination, they were designed to help them find religiously compliant facilities.

    Second, although there are examples of antisemitism being practiced by travel facilities from the 1800 and 1900s (and even from the 2000s), these examples appear to be just that—individual decisions by a particular facility to discriminate based on religion. No state adopted laws designed to create a Jim Crow-like system of discrimination against Jews as was done against African Americans just as there were no “Jewish divisions” in the miliary of the 1940s as was required of African-Americans. My relatives have served in the Army, Navy and Marines without any limitations because of their religion.

    Since I found nothing, you may be wondering about why I have bothered to post anything on the Lounge. Again, there are two reasons. As I did the research, numerous people and organizations unselfishly gave of their time to assist me. This openness stands in stark contrast to a country where discrimination is acceptable and should be noted. More importantly, however, was the broader reminder that my research gave me. All too often we tend to compare our histories of discrimination. Comparison here means nothing—all group-based discrimination achieves nothing.

    This was recently reinforced in several episodes of Henry Louis Gates’s PBS show, Finding Your Roots. It became explicit as Tony Kushner’s roots were explored. The trail of his family ended with the information from the time his family immigrated to the United States as all of the records before that were destroyed by the Nazis. Only one Jewish guest’s roots could be extended back (Carol King) as there were some Russian records that had survived. Similarly, for all of the African Americans who have been on the show, the family roots ended with slavery. Here, however, DNA has allowed some jump across the ocean as it gives some indication of what areas of Africa are represented within each person’s family. Of course, knowing your country of origin is not the same as knowing your family. Kushner and Gates discussed this in the episode. Kushner said:

    Genocide is a specific thing. Slavery is a specific thing. [Slavery is] a kind of soul murder that is unlike other forms of oppression. The holocaust is a near successful attempt to obliterate ... [i]n less than a decade an entire civilization. This is beyond human comprehension. And you don’t repress the fact that it happened, but you allow a ring of unknowing to surround it because you can’t… you know what was it like on a slave ship… what was it like in Auschwitz. Our great good fortune in a way is to not actually know directly.

The full transcript can be found here.

    I wish I knew more about my family before we came to the U.S. beyond knowing that my Father’s family came from Roumania and my Mother’s family came from Ukraine and Austria. Similarly, I am sure that many African-Americans would love to know their familial background and, for many, their country of origin within Africa. The reality is that none of us will ever know this. So the end of the long search left me knowing, more surely than ever, that there is a great loss when you are cut off from your personal history. At times, to recover from this, we generate a myth that there was a pattern of discrimination. Whether these myths heal or whether they just hide the wounds does not, in the long-term, matter.

Will the Real Evidence-Based Ebola Policy Please Stand Up? Seven Takeaways From Maine DHHS v. Hickox

UPDATES (11/9/14): NPR reports that Hickox's boyfriend  has withdrawn from nursing school and that the two will move out of the state after Nov. 10. Alas, in so reporting, NPR claims that Maine had "sought a court order to require [Hickox] to stay indoors." Apparently NPR doesn't read TFL (or court petitions). Meanwhile, I found this recent JAMA news report about what we do and don't know about Ebola enlightening. Both links via Ross Silverman on Twitter (@phlu). Finally, thanks to Christian Turner for plugging the post on the latest episode of the always interesting Oral Argument podcast.

The case I mentioned in my last post, Maine Department of Health and Human Services v. Kaci Hickox is no more. Hickox and public health officials agreed to stipulate to a final court order imposing on Hickox the terms that the court had imposed on her in an earlier, temporary order. Until Nov. 10, when the 21-day incubation period for Ebola ends, Hickox will submit to "direct active monitoring" and coordinate her travel with Maine public health authorities to ensure that such monitoring occurs uninterrupted. She has since said that she will not venture into town or other public places, although she is free to do so.

Below is a detailed account of the case, which suggests the following lessons:

1. As Hickox herself described it, the result of her case is a “compromise,” reflecting neither what Hickox nor what Maine initially wanted.
2. That compromise was achieved by the parties availing themselves of the legal process, not through Hickox’s civil disobedience.
3. The compromise is not easily described, as it has been, as a victory of science-based federal policy over fear-based state demagoguery. By the time the parties got to court, and perhaps even before then, what Maine requested was consistent with U.S. CDC Guidance, albeit a strict application of it. What Hickox had initially offered to do, by contrast, fell below even the most relaxed application of those guidelines, although by the time the parties reached court, she had agreed to comply with that minimum.
4. The compromise applies only to Hickox, and was based on a stipulation by the parties to agree to the terms that the court had temporarily imposed after reviewing a limited evidentiary record. Additional evidence and legal arguments that the state might have raised in the now-cancelled two-day hearing could have resulted in a different outcome.
5. A substantially different outcome, however, would have been unlikely under Maine’s public health statute. Indeed, it is not clear that Maine’s public health statute allows public health authorities to compel asymptomatic people at-risk of developing Ebola to do anything, including comply with minimum CDC recommendations.
6. “Quarantine” is a charged, but ambiguous, term. It allows us to talk past one another, to shorthand and needlessly politicize a much-needed debate about appropriate policy, and to miss the fact that the CDC Guidance in some cases recommends what could be fairly described as a "quarantine" for people like Hickox and requires it for asymptomatic people with stronger exposure to Ebola (but who are still probably less likely to get sick than not).
7. It’s not clear who has bragging rights to Ebola policy "grounded in science," or what that policy looks like.

Above the (Public Health) Law: Healthcare Worker Deception & Disobedience in a Time of Distrust

Addendum and updates (latest: 4 pm, 10/31) added below

 

A physician shall . . . be honest in all professional interactions, and strive to report physicians . . . engaging in fraud or deception, to appropriate entities.

 

—AMA Principles of Medical Ethics

 

 

This is a troubling series of news reports about deception and defiance on the part of some healthcare workers (HCWs) in response to what they believe to be unscientific, unfair, and unconstitutional public health measures:

(1) Ebola Aide Doc: I'm Not Telling My Team To Tell The Truth

Gavin Macgregor-Skinner, an epidemiologist and Global Projects Manager for the Elizabeth R. Griffin Foundation, who has led teams of doctors to treat Ebola in West Africa, reported that he "can't tell them [his doctors] to tell the truth [to U.S. officials]" on Monday's "CNN Newsroom."

“At the moment these people are so valuable . . . I have to ensure they come back here, they get the rest needed. I can't tell them to tell the truth at the moment because we're seeing so much irrational behavior,” he stated. “I've come back numerous times between the U.S. and West Africa. If I come back now and say ‘I've been in contact with Ebola patients,’ I'm going to be locked in my house for 21 days,” Macgregor-Skinner said as his reason for not being truthful with officials, he added, “when I'm back here in the US, I am visiting US hospitals everyday helping them get prepared for Ebola. You take me out for three weeks, who’s going to replace me and help now US hospitals get ready? Those gaps can't be filled.” 

He argued that teams of doctors and nurses could be trusted with the responsibility of monitoring themselves, stating, “When I bring my team back we are talking each day on video conferencing, FaceTime, Skype, text messaging, supporting each other. As soon as I feel sick I’m going to stay at home and call for help, but I’m not going to go to a Redskins game here in Washington D.C. That's irresponsible, but I need to get back to these hospitals and help them be prepared.

UPDATE: Here is the CNN video of his remarks.

(2) Ebola Doctor 'Lied' About NYC Travels

The city’s first Ebola patient initially lied to authorities about his travels around the city following his return from treating disease victims in Africa, law-enforcement sources said. Dr. Craig Spencer at first told officials that he isolated himself in his Harlem apartment — and didn’t admit he rode the subways, dined out and went bowling until cops looked at his MetroCard the sources said. “He told the authorities that he self-quarantined. Detectives then reviewed his credit-card statement and MetroCard and found that he went over here, over there, up and down and all around,” a source said. Spencer finally ’fessed up when a cop “got on the phone and had to relay questions to him through the Health Department,” a source said. Officials then retraced Spencer’s steps, which included dining at The Meatball Shop in Greenwich Village and bowling at The Gutter in Brooklyn.

 

UPDATE 11PM, 10/30: A spokesperson for the NYC healh department has now disputed the above story, which cites anonymous police officer sources, in a statement provided to CNBC. The spokesperson said: "Dr. Spencer cooperated fully with the Health Department to establish a timeline of his movements in the days following his return to New York from Guinea, providing his MetroCard, credit cards and cellphone." . . . When CNBC asked again if Spencer had at first lied to authorities or otherwise mislead them about his movements in the city, Lewin replied: "Please refer to the statement I just sent. As this states, Dr. Spencer cooperated fully with the Health Department."

(3) Ebola nurse in Maine rejects home quarantine rules [the WaPo headline better captures the gist: After fight with Chris Christie, nurse Kaci Hickox will defy Ebola quarantine in Maine]

Kaci Hickox, the Ebola nurse who was forcibly held in an isolation tent in New Jersey for three days, says she will not obey instructions to remain at home in Maine for 21 days. "I don't plan on sticking to the guidelines," Hickox tells TODAY's Matt Lauer. "I am not going to sit around and be bullied by politicians and forced to stay in my home when I am not a risk to the American public."

Maine health officials have said they expect her to agree to be quarantined at her home for a 21-day period. The Bangor Daily News reports. But Hickox, who agreed to stay home for two days, tells TODAY she will pursue legal action if Maine forces her into continued isolation. "If the restrictions placed on me by the state of Maine are not lifted by Thursday morning, I will go to court to fight for my freedom," she says.

On the evolving Hickox situation, it's unclear whether — as Hickox herself has suggested — she is already under a mandatory home quarantine order, which she is threatening to defy by leaving her house on Thursday morning and (unless it's been lifted) suing, or whether — as her attorneys say — she is currently under no such quarantine order and is free to leave her house at any time (but is choosing to rest for a couple of days). In any case, Maine has clearly said that it is prepared to get a court order to enforce (or impose) a quarantine order.

 

More after the jump...

 

How an IRB Could Have Legitimately Approved the Facebook Experiment—and Why that May Be a Good Thing

Image courtesy Flickr

By now, most of you have probably heard—perhaps via your Facebook feed itself—that for one week in January of 2012, Facebook altered the algorithms it uses to determine which status updates appeared in the News Feed of 689,003 randomly-selected users (about 1 of every 2500 Facebook users). The results of this study—conducted by Adam Kramer of Facebook, Jamie Guillory of the University of California, San Francisco, and Jeffrey Hancock of Cornell—were just published in the Proceedings of the National Academy of Sciences (PNAS).

Although some have defended the study, most have criticized it as unethical, primarily because the closest that these 689,003 users came to giving voluntary, informed consent to participate was when they—and the rest of us—created a Facebook account and thereby agreed to Facebook’s Data Use Policy, which in its current iteration warns users that Facebook “may use the information we receive about you . . . for internal operations, including troubleshooting, data analysis, testing, research and service improvement.”   

Some of the discussion has reflected quite a bit of misunderstanding about the applicability of federal research regulations and IRB review to various kinds of actors, about when informed consent is and isn’t required under those regulations, and about what the study itself entailed. In this post, after going over the details of the study, I explain (more or less in order):

• How the federal regulations define “human subjects research” (HSR)
• Why HSR conducted and funded solely by an entity like Facebook is not subject to the federal regulations
• Why HSR conducted by academics at some institutions (like Cornell and UCSF) may be subject to IRB review, even when that research is not federally funded
• Why involvement in the Facebook study by two academics nevertheless probably did not trigger Cornell’s and UCSF’s requirements of IRB review
• Why an IRB—had one reviewed the study—might plausibly have approved the study with reduced (though not waived) informed consent requirements
• And why we should think twice before holding academics to a higher standard than corporations

A Post from a Second Class Citizen

    I want to follow up on Eric Muller’s short complaint yesterday about the Town of Greece case. I, too, feel that, for the first time in my life as an U.S. citizen, the doors of government are closing on me because of my religion.

    To be fair, the case is not affecting me in a vacuum. The recent attacks and murders in Kansas City where people were killed allegedly because the assailant perceived them to be Jewish has an impact. The recent flyers notifying Jews in Eastern Ukraine that they were required to register with their town merely because they were Jews has an impact. The fact that a family member’s synagogue needs an armed police guard for Saturday services has an impact. The fact that, in my state, being a member of the Anti-Defamation League serves to disqualify you from service on the bench has an impact. But so too does a case that tells me that history is the best judge of the boundaries of the Establishment Clause. “[I]t is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.” Town of Greece, New York v. Galloway, No. 12–696, slip op. at 8 (Sup. Ct. 2014). Let’s look at this history: the Crusades; Inquisition; hundreds of years of European wars over religion; pogroms throughout Russia and Eastern Europe both before and after World War II; religiously-based conflicts in India, Yugoslavia, Sudan, Israel/Palestine, Armenia, and numerous other countries around the world too numerous to list; and, of course, the Holocaust.

    For at least the last 1,000 years, we have been killing each other because of religion. The great hope for the U.S. constitutional democracy was that, by removing government from the religion game, we could put this history behind us. Unfortunately, the Supreme Court has started a process of disenfranchising U.S. citizens based on religion. To attend a government meeting in Greece, New York — and soon in many other towns throughout the U.S. — one must first now accept a call to prayer that will serve to define the majority’s view of proper religious behavior. With no Jewish, Muslim, Buddhist, or Hindu houses of worship in Greece, New York — and in many other towns throughout the U.S. — the prayers will be Christian.

    The Court’s majority seem to think that sectarian prayer will improve the process of government. “Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function.” Id. at 14. How does one religion’s prayer trigger “shared ideals?” Why would a minority member feel that a “common end” will be easier to achieve now that someone else’s religion (or for the atheist, religion itself) has been proclaimed as dominant? No, the opposite occurs. The minority is being instructed — “You are only here because we tolerate you, but don’t, not even for a minute, believe that you are a member of the community.”

Justice Scalia's Dissent in Windsor & Why Everyone Should Learn Indian Law

I was reading Justice Scalia's dissent in Windsor the other night and came across a statement that was wrong in regard to whether the Court had decided a previous case in which the plaintiff and defendant were not adverse.  There is a very clear example from federal Indian law that contradicted his statement that the Court has never decided such a case, yet no one, as far as I could tell, cited it in the briefs or in any of the opinions.  This experience reminded me how important Indian law is, even for those who don't practice or teach it.

Specifically, Justice Scalia says "[w]e have never before agreed to speak--to 'say what the law is--where there is no controversy before us."  United States v. Windsor, 133 S. Ct. 2675, at 2700 (Scalia, J., dissenting).  So convinced is he of this proposition that he repeats later on, "[t]he majority can cite no case in which this Court entertained an appeal in which both parties urged us to affirm the judgment below."  Id. at 2702.

Yet, in Menominee Tribe v. United States, 391 U.S. 404 (1968), Justice Douglas, writing for the majority, explains:  

" The Court of Claims by a divided vote held that the tribe possessed hunting and fishing rights under the Wolf River Treaty; but it held, contrary to the Wisconsin Supreme Court, that those rights were not abrogated by the Termination Act of 1954. We granted the petition for a writ of certiorari in order to resolve that conflict between the two courts.  On oral argument both petitioner and respondent urged that the judgment of the Court of Claims be affirmed. The State of Wisconsin appeared as amicus curiae and argued that that judgment be reversed."  Id. at 407 (emphasis added).

This could have been an incredibly useful case for the majority opinion (and the plaintiff's argument), and knowing about it and distinguishing it could have strengthened Justice Scalia's dissent, but apparently it was on no one's radar, which demonstrates I think just how marginalized federal Indian law is.  

Justice Scalia, for his part, has, at least in the past, controversially suggested that he doesn't need to decide Indian law cases based on precedent, so perhaps there is little reason, in his view, for him to be well-versed in the precedents.   In a 1990 memo to Justice Brennan, he is reported  to have said:  "[O]ur opinions in this field have not posited an original state of affairs that can subsequently be altered only by explicit legislation, but have rather sought to discern what the current state of affairs ought to be by taking into account all legislation, and the congressional 'expectations' that it reflects, down to the present day."  Philip P. Frickey, "A Common Law for Our Age of Colonialism: the Judicial Divestiture of Indian Tribal Authority over Nonmembers," 109 Yale L.J. 1, 63 (1999) (emphasis added).  And, of course, it wasn't just Justice Scalia's oversight--apparently no one thought to raise or distinguish Menominee Tribe.  

But Windsor is evidence of why federal Indian law is important, even if you don't expect to teach it, practice it, or decide cases based on it.  It relates to other areas.   Not only do the cases include structural constitutional issues like the case or controversy requirement, but federal Indian law, contrary to most people's perceptions, is a very broad subject.  Issues of taxation, criminal jurisdiction, civil jurisdiction, civil rights, administrative law, environmental law, and child welfare all come up with some regularity.

And that's just the beginning.  There's also the fact that federal Indian law is incredibly interesting in it's own right, and it provides important insight into our government and society.  Felix Cohen, the primary architect of the field, once explained:  "'Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians . . . reflect[s] the rise and fall in our democratic faith."   Rennard Strickland, "Indian Law and the Miner's Canary:  The Signs of Poison Gas," 39 Clev. St. L. Rev. 483, 483 (1991).  If you want to learn about white fear, for example, just read a Supreme Court case about tribal jurisdiction.  Jurisdiction cases such as Oliphant v. Suquamish Indian Tribe, Plains Commerce Bank v. Long Family Land & Cattle, Nevada v. Hicks, and Justice Kennedy's concurrence in the judgment and Justice Souter's dissent in United States v. Lara are replete with concerns (sometimes implicit but always readily perceptible) that tribes will not treat non-member litigants fairly.  Sometimes I wonder why all of this concern exists.  And then America's history of interaction with tribes pops into my head and explains it.  Assimilation, termination, extermination have all been official U.S. policies with respect to tribes.  As a psychological matter, the fear is understandable.

Along with white fear, you can see the cases in a broader context and think about our government's hypocrisy.  While the Court worried about potential unfairness to nonmember litigants in tribal courts, and denied tribal jurisdiction as a prophylactic measure to prevent it, American officials were busy waterboarding and otherwise torturing non-citizens suspected of terrorism, and the federal courts seemed eager to avoid hearing about it. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662 (2009); El-Masri v. United States, 479 F.3d 296, 300 (4th Cir. 2007); Ann E. Tweedy, "Connecting the Dots Between the Constitution, the Marshall Trilogy, and United States V. Lara: Notes Toward a Blueprint for the next Legislative Restoration of Tribal Sovereignty," 42 U. Mich. J.L. Reform 651, 707 n.274 (2009).

 And beyond of all these macro issues, federal Indian law, given its variety and complexity, is endlessly interesting.  Not to mention that working for tribes is an incredible learning experience and one of the best jobs out there.

Capuchin Monkeys Say: Unequal Pay for Equal Work Isn't Cool

Like many of you, I imagine, I'm always looking for brief clips that I can show my students to illustrate a point with a bit of humor. When I teach advance directives (and the difficulties in and drawbacks of drafting them), for instance, I show this clip from "The Comeback" episode of Seinfeld season 8. (The only downside is that each time I show it, fewer students have ever heard of Kramer and the gang.)

Well, those of you who teach the Lilly Ledbetter Act or related matters may wish to check out this short snippet from a 2012 TED talk (but going semi-viral now, thanks to Upworthy) by primatologist and Emory professor Frans de Waal. I myself plan to use it the next time I teach or talk about bounded self-interest (and in particular, preferences for fairness/inequality aversion). Even if your work has nothing to do with employment discimination or behavioral economics, these two minutes are worth watching. Because cute Capuchin monkeys.

Owens Lake Restoration

Recently, I heard the surprising and wonderful news that considerable progress has been made on the restoration of Owens Lake and the Lower Owens River.  Some of you may remember that the plot of the movie Chinatown is based on Los Angeles officials' (and others') wheeling and dealing in the early 1900s to get the rights to divert water from Owens Valley, once a fertile farming area, about two hundred miles to the City of Los Angeles (without revealing their true intentions).  Teachers of Water Law, like myself, undoubtedly have at least seen the story referenced in textbooks or perhaps read the account in Marc Reisner's Cadillac Desert.  The short version is that the lower part of the Owens River and the entirety of Owens Lake, a shallow, saline lake that once supported "[d]ucks . . . by the square mile, millions of them," so that "the roar of their wings . . . could be heard . . . ten miles away . . . ," were completely dried up to support the water needs of Los Angeles, causing immense air quality problems due to the dust blowing out of the dry lake bed.  Marc Reisner, Cadillac Desert 59 (1993) (quoting Beveridge R. Spear).   
The problem fueled calls for area of origin protections in prior appropriation states, the idea being that there should be protections in place for the localities from which water is diverted and that the interests of such areas should at least be part of the calculus of deciding whether to allow a transfer out of the watershed or a new diversion.   The air quality problems caused by the dust from the dry lake bed have been the subject of litigation for decades.   See, e.g., County of Inyo v. City of Los Angeles, 71 Cal. App. 3d 185 (1977).  But significant developments have occurred in the last few months.  After a federal judge dismissed the City of Los Angeles Department of Water and Power's challenge to state air quality regulations in May, see City of Los Angeles v. Great Basin Unified Air Control District (Docket No. 1:12CV1683 AWI SAB, E.D. Cal., May 1, 2013), the Department of Water and Power negotiated a restoration plan with Audubon California, see "A California Lake Becomes a Stopover Spot Again," Audubon Magazine (Sept./Oct. 2013), and significant steps to implement the plan have already occurred according to this recent article in the Los Angeles Times.   All of this goes to show that, even when we cause grave ecological harms, we sometimes get second chances.  

Supply and Demand

Lately, I have been disappointed to see how reactive the legal academy has been to the legal jobs crisis. In particular, the public discussion of what to do about the decline in jobs for our graduates seems always to be about how best to cut expenses, shrink faculties, close schools, or reallocate resources. We tend to take as given the number of paying jobs available and we scrap over nothing more than how to adjust ourselves to these small numbers.

Many of these debates, apart from their antagonistic tone, are useful. Some ideas for better efficiency and reduced expenses are genuinely prudent, and we should be glad for the debate and for any ensuing reforms that make life better for our students and the public.

But there is an entire side to the discussion that we simply aren't having: beyond reducing supply, we should be increasing demand. Despite the shrinking numbers of existing jobs in existing firms working for existing clients, there is no corresponding shrinkage among those who simply cannot afford the legal advice they need.  Where is the debate about how to find funds so that lawyers can be hired to serve those clients, at salaries commensurate with their skill, education, and indebtedness?

In certain circles, law-reform types mention notions like a "civil Gideon" or suggest renewed appropriations for public defenders, but these conversations seem to me to occur almost entirely apart from the debate about what to do about law schools. Shouldn't these topics be part of figuring out how to employ more of our graduates? Perhaps we need a strategy to dramatically increase public investment in legal services. Perhaps the new support ought to come instead from foundations or philanthropists. Perhaps the bar itself, those lawyers who have found lucrative careers in our noble profession, should be cross-subsidizing service to the less-well-off to a much greater degree. I don't know.

Excluding these questions from the debate, however, amounts to simply accepting the world as it is handed to us, as if the market for lawyers were a fact of nature. To the contrary, the market is a human creation, and humans can alter it. We strive to teach our students to fight for their clients not just on whatever unfavorable battlefield they happen to find themselves, but to seek out or even build new legal terrain upon which ever more favorable results can be won. Don't we owe ourselves the same creativity?

On the Mall for the 50th Anniversary of the March on Washington

I just returned from a week-long trip to Washington D.C., the highlight of which was a day on the Mall listening to speeches commemorating the 1963 March on Washington and MLK's "I have a Dream" speech from 50 years ago. I was reminded that a week ago, I suggested to our entering 1L students that one aspect of being a law student is that they will never read (or listen) to the news again in the same way. As I listened to speakers who reflected on the changes in American law and policy over the past 50 years, it was an opportunity to reflect on my role as a legal educator.

If I had been a law professor in 1963 (I was only 8 years-old at the time), would I have marched? Would I have been a freedom rider? Would I have used the law school classroom to encourage students to find their voice in the civil rights debate?

. . . and as I considered these questions, I realized that they are as pertinent today as they were 50 years ago. We may not know which issues of our time will be remembered 50 years from now as a crossroad of social change . . . but we certainly have no shortage of issues facing our country . . . immigration, gun control, campaign finance reform, civilian use of drones, NSA surveillance, fair wages, health care, "stand your ground laws", abortion restrictions . . . and the pending question this week . . . possible US military action in Syria.

As law professors, what is our role in these current debates? Will we march? Will we ride? Will we incite civil debate in our classrooms and in our communities?

If you haven't taken the opportunity to listen to the speeches from Wednesday, August 28th (all easily available on YouTube by searching for "50th Anniversary of the March on Washington"), I highly recommend doing so. Most are 2-10 minutes long and are quite though provoking.

I would be interested in your reactions . . . 

How Not To Correct the Record

Updated below, 7/26/13, 11:30 am.

Further update 7/26/13, 1:40 pm: The sentence that this post discusses has now been fully corrected, and both the errors and changes acknowledged by TNR. Kudos. H/T Jonathan Adler at VC.

Recently, I wrote about the Zimmerman trial and my disappointment (if not complete surprise) at how irresponsible many journalists, scholars and lawyers have been in reporting, discussing, and drawing conclusions from that case. As I noted there, one of the most serious, and most obviously incorrect, of the many widespread errors about the case is that Zimmerman racially profiled a seven-year-old black child. Now, the original police log of Zimmerman's calls has been available to everyone with an Internet connection and two minutes to spare since March of 2012. Nevertheless, on July 16, 2013, The New Republic published an essay in which a distinguished law professor wrote the following (emphasis in original):

. . . Zimmerman was an edgy basket case with a gun who had called 911 46 times in 15 months, once to report the suspicious activities of a seven year old black boy.

That sentence contains three factual errors (the broader article contains others), two of which I noted in my prior post. First, and probably of least importance, many of Zimmerman's 46 calls (reporting 43 incidents) were made to the non-emergency police number (not just to 911). Second, and of more import, Zimmerman made 46 calls over 7.5 years (not over 15 months). Third, and most egregiously, Zimmerman's call (to the non-emergency police number) regarding a seven-to-nine-year-old black boy was placed because Zimmerman was "concerned for [the] well being" of that child, who was walking unaccompanied on a busy street (see page 37).

After being alerted to at least some of these errors, TNR eventually edited the sentence. Two changes were made — one acknowledged at the bottom of the TNR article, and one unacknowledged — while a third error was left unaddressed. The acknowledged change addresses the least damaging of the three errors: TNR replaced "called 911" with "called the polics [sic]," thus implicitly acknowledging that many of GZ's calls were to the non-emergency number rather than to 911. A more damaging error remains: that GZ made 46 calls within "15 months," instead of over a period of 7.5 years, as the call log readily shows.

But it's TNR's unacknowledged change in response to the third, most serious, error that really chafes. Here's how the sentence now reads (once again, italics in the original):

. . . Zimmerman was an edgy basket case with a gun who had called the polics 46 times in 15 months, once to report on a seven year old black boy.

Seriously?

TNR replaced "report the suspicious activities of a seven year old black boy" with "report on a seven year old black boy." The charitable characterization of this edit is that it is very, very lawyerly. Yes, the TNR piece no longer explicitly falsely claims that GZ called the police about a black boy because GZ found the child suspicious. But in the context of a paragraph meant to demonstrate that "[v]igilante justice . . . is especially menacing to minority racial groups who are often sterotyped as criminals," and in the absence of disclosing the benign (indeed, laudatory) reason why GZ did call police, the reporting of GZ's call about "a seven year old black boy" — complete with incredulity italics — strongly implies what the article only technically no longer says: that Zimmerman "reported on" a young black child because Zimmerman stereotyped that child as a criminal.