Eugene Volokh's Blog, page 2721
September 2, 2011
May Judges Be Facebook "Friends" with Lawyers or Others Who Regularly Appear Before Them?
Oklahoma Judicial Ethics Advisory Panel opinion 2011–3 (handed down July 6, but just recently reported in the Westlaw Bulletin database) discusses the disagreement on this, and answers the question "no":
¶1 Questions: 1. May a Judge hold an internet social account, such as Facebook, Twitter, or Linkedin without violating the Code of Judicial Conduct?
¶2 2. May a Judge who owns an internet based social media account add court staff, law enforcement officers, social workers, attorneys and others who may appear in his or her court as "friends" on the account?
¶3 Answers: Question 1 – Yes, with restrictions.
¶4 Question 2 – No.
¶5 Discussion: The explosion in the use of social networking accounts has resulted in inquiries, such as we address in this opinion to Judicial Ethics Advisory Panels in several states, and the use of such accounts resulted in sanctions being imposed for improper use in some instances. We have reviewed opinions from New York, Florida, South Carolina, Kentucky and Ohio and reports of disciplinary actions in North Carolina and Georgia.
¶6 The common theme of the opinions rendered in other states deals with the conflict that may arise between the use of the social network and the duty of the Judge, found in all the Codes of Judicial Conduct, that is the duty of the Judge to maintain the dignity of judicial office at all times, and avoid impropriety and the appearance of impropriety in their professional and personal lives, and to ensure the greatest public confidence in their independence, impartiality, integrity and competence. See Preamble of Oklahoma Code of Judicial Conduct (2), Canon 1, Rule 1, 2, etc. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the Judge violated this code or engaged in other conduct that reflects adversely on the Judge's honesty, impartiality, temperament, or fitness to serve as a Judge. Canon 1, Rule 214 (C), "A Judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the Judge."
¶7 All of the Ethics Panels have opined that there is no per se violation of their respective Codes but differ as to whether the Judge can add as "friends" lawyers or others who regularly appear or are likely to appear in their court. We conclude that in answer to Question 1 that a Judge may hold a social networking account that includes as "friends" any person who does not regularly appear or in unlikely to appear in the Judge's court as long as he does not use the network in a manner that would otherwise violate the Code of Judicial Conduct. New York, South Carolina, Kentucky, and Ohio have concluded that it is not per se a violation to have as a "friend" on Facebook, lawyers who appear before the Judge or those persons such as law enforcement officers, social workers who may appear before the court but restrict any such conduct that could publicly be perceived as indicating that such persons may exercise undue influence on the Judge as regarded as ex-parte communications. The Kentucky opinion JE 119 states that they do not believe that being a designated friend in a social network conveys the impression of a special relationship, the opinion is shared by panels from New York, South Carolina, and Ohio and a minority opinion from Florida. The Kentucky opinion repeats the admonition New York Advisory Opinion 08–176 that "social networking sites are fraught with peril for Judges." We agree wholeheartedly with the admonition.
¶8 Florida's Judicial Ethics Advisory Opinion 2009–20 prohibits a Judge from adding lawyers who appear in the Judge's court as "friends" and prohibits these lawyers from adding the Judge a "friend" as being violative of the canon that prohibits a Judge from conveying an impression, or allow others to convey the impression, that a person is in a special position to influence the Judge. We agreed and emphasize that whether such posting would mean that the party was actually in a special position is immaterial as it would or could convey that impression. We believe that the same rationale applies to social workers, law enforcement officers, or others who regularly appear in court in an adversarial role. In response to our specific question, we do not believe that this extends to court staff.
¶9 We believe that public trust in the impartiality and fairness of the judicial system is so important that is imperative to err on the side of caution where the situation is "fraught with peril."
¶10 To those who would argue that this position is too restrictive of the rights and privileges of the Judge, we echo the Kentucky opinion JE 119, wherein it is stated "A Judge must accept restrictions on the Judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly."
Religious Community Authorities' Massive Obstruction of Justice?
Der Spiegel (Germany) has an interesting and troubling story about this. Here's an excerpt, though you should read the whole thing:
According to police, the victim's and the perpetrator's families had met at a restaurant in the presence of an Islamic "justice of the peace," an arbitrator who mediates conflicts between Muslims. The two families had reached a compromise: Fuat would drop the charges, and in exchange be relieved of part of his debt.
According to Bernhard Mix, the public prosecutor in charge of the case, Fuat's false testimony was part of a deal between the families. "It's difficult to establish the truth using legal means, when the perpetrator and the victim reach an agreement," he says....
These justices of the peace don't wear robes. Their courtrooms are mosques or teahouses. They draw their authority not from the law, but from their standing within the community. Most of them are senior members of their families, or imams, and some even fly in from Turkey or Lebanon to resolve disputes. Muslims seek them out when families argue, when daughters take up with nonbelievers or when clans clash. They often trust these arbitrators more than they trust the state....
In [a recent book on the subject], judges and prosecutors tell of threats toward public officials and systematic interference with witnesses. "We know we're being given a performance, but the courts are powerless," says Stephan Kuperion, a juvenile court judge in Berlin. Federal public prosecutor Jörn Hauschild warns, "It would be a terrible development if serious criminal offences in these circles could no longer be resolved. The legal system would be reduced to collecting victims."
[The arbitrators] operate in a gray area between conflict resolution and obstruction of justice. [One arbitrator], for example, claims to work closely with authorities, but investigators suspect him of preventing witnesses from giving statements to the police. So far they've never been able to prove an obstruction of justice....
If these arbitrators would limit themselves to containing conflicts, there would be no reason to object, says legal and Islamic studies expert Mathias Rohe in the Bavarian city of Erlangen. German law, after all, allows for arbitration. What Rohe finds unacceptable is the exertion of influence over criminal proceedings. "Criminal prosecution is a privilege of the state," he says.
The state justice system, though, is having a hard time shaking off the shadow system....
For a similar story from the U.S., though apparently involving only a small Orthodox Jewish community, see this post.
I generally support the right to engage in religious arbitration of civil disputes, if the parties agree to such arbitration by contract. Such arbitrations should generally be legally enforceable, like other contractually provided-for arbitrations are enforceable, and subject to the general limits that govern other contractually provided-for arbitrations (though there may or may not be some legal problems with that if the arbitrators enforce sex– or religion-discriminatory rules with regard to witnesses). In most states, for instance, parties can provide by binding contract for a marital property settlement, subject to some limitations, but not for a child custody decision (since that involves the rights of people other than the parties). Likewise, arbitration of such disputes should be permitted on similar terms.
I recognize that sometimes the contracts might be the result of social, economic, or emotional pressure, but generally speaking that isn't a reason to set aside contracts: Businesses and individuals routinely enter into deals as a result of economic pressure, and sometimes social and emotional pressure, and we generally don't try to rescue people from such deals (again, with some exceptions) — the same should be true if the individuals involved are members of religious groups who call for religious arbitrators rather than secular ones.
But this having been said, the practices described in the Der Spiegel article are quite different, and seem to be crimes, not contracts. Working out a deal through which someone testifies falsely is conspiracy to commit perjury. Working out a deal through which a witness is paid not to testify is conspiracy to obstruct justice. (Sometimes prosecutors may agree to drop minor charges if the underlying harm has been properly compensated for, but that is a decision for prosecutors to make.) Even if the parties have concluded — with or without social pressure — that they don't want the crime to be prosecuted, the rest of us still have an important interest in making sure that the criminal is incapacitated or deterred from committing such future crimes, and that others are deterred as well.
In any event, some of what the article describes constitute serious crimes, which should be prosecuted and punished as such. Of course, proving such crimes is often difficult, because once the deal is made, the witnesses refuse to testify. But in at least some cases, there should be enough evidence to prove guilt; and a few such prosecutions can have a considerably broader deterrent effect, it seems to me. Thanks to Dan Gifford for the pointer.
Eleventh Circuit Dismisses Alien Tort Statute Claim
John Bellinger writes at Lawfare on the 11th Circuit's dismissal of Alien Tort Statute claims against former senior Bolivian government officials. (Jack Goldsmith served as defense co-counsel.) This case (opinion) involves former government officials, and so does not raise perhaps the most hotly-contested issue in ATS litigation today, corporate liability, on which there is now a signficant circuit split. However, I agree with John that the tone of the 11th Circuit opinion reflects something that Roger Alford has mentioned at Opinio Juris blog — a note of caution entering appellate decisions in ATS cases.
First, the Court shows considerable sensitivity (if not irritation) about being asked to judge security actions taken by foreign leaders, especially in this case where the leaders were "faced with thousands of people taking to the streets in opposition." Repeatedly invoking the Supreme Court's call for caution in Sosa, the Court emphasizes that the ATS is "no license for judicial innovation" and that "judicial restraint is demanded." Moreover, the Court observes that "We know and worry about the foreign policy implications of civil actions in federal courts against the leaders (even the former ones) of nations. And we accept that we must exercise particular caution when considering a claim that a former head of state acted unlawfully in governing his country's own citizens."
Second, the Court also emphasizes that Iqbal requires not only specific factual allegations of misconduct but allegations of misconduct by the particular defendants. "We do not accept that, even if some soldiers or policemen committed wrongful acts, present international law embraces strict liability akin to respondeat superior for national leaders at the top of the long chain of command in a case like this one."
Substitute "China" for "Bolivia" here, and this is my long run policy prediction for the future of the Alien Tort Statute. American judges seem gradually to be understanding that ATS jurisprudence as it developed from the 1980s onwards is not really international law – it is, rather, the "law of the hegemon." "Hegemonic" and "international" are not the same thing. (I commend to you Ian Clark's brand-new study, Hegemony in International Society, the third in his trilogy, though we reach somewhat different conclusions.)
My prediction is that even without embracing a strong hegemon-in-decline thesis, the fact of rising and assertive new great powers, such as China, will cause judges to take more seriously the prudential language of the Supreme Court's Sosa opinion, and to conclude that it is better to let the political branches decide how much to push human rights norms and in what ways. If at all – regular and faithful readers know my general view that much of what is taken as universal human rights shelters in actual fact under the umbrella of US hegemony, and the decline of hegemony will undermine a great many of those "universal" claims.
That emphasis on Sosa's prudential concerns will be true most obviously in the case of former government officials. Suppose that a similar suit were brought against former Chinese senior officials following killings, disappearances, torture, etc.in the wake of rural unrest. How far would such a suit get if it were China? The US government took no official position in this Bolivian litigation – a stance that has characterized multiple administrations. I have never understood the unwillingness of US administrations to enter such litigation (save relatively rarely), if only to assert that the government's views can never be ignored and, really, even ought to be decisive. But it seems to me politically the worst idea of all to fail to enter all but a few of such cases across many many years – and then suddenly assert that the US government's views are hugely important, but only when China, and its officials or former officials, are being sued in US court. It would be a horrible signal to send to China and the rest of the world.
But given how deeply corporations in China are intertwined with China's core international strategy of commercial interests in resources and energy – especially in Africa, where it is now the largest trading partner, overtaking the US – corporate liability as an issue in ATS litigation is going to be a political issue as well. After all, the labor and environmental practices of China's corporations in Africa are not exactly beyond criticism, and the kinds of alleged violations leveled against US and Western corporations in ATS suits, asserted in ATS pleadings as such things as slavery, crimes against humanity, genocide, etc., have a lot more purchase against China's corporations abroad. But is that really politically possible as a "universal" human rights enforcement strategy through the ATS that depends upon American hegemony – but a hegemony-in-decline? I'm no SCOTUS expert, but given the circuit split over corporate liability, I find it hard not to think that the Court revisit Sosa and its standards. (I should add that I have been an expert witness on the defense side in an earlier ATS case; my declaration in that Agent Orange case before Judge Jack Weinstein, is here at SSRN.)
(Finally, congratulations to Lawfare blog on its one-year birthday!)
White House Halts New Federal Smog Standards
President Obama today told the U.S. Environmental Protection Agency to set aside plans to tighten the National Ambient Air Quality Standard for ground-level ozone (aka "smog"). The proposed tightening was fiercely opposed by business groups as well as state and local governments, as the latter are charged with developing plans to meet the standards. In addition to the anticipated costs of metting the new standards, opponents pointed out that the EPA is required to review its air quality standards every five years, and would have to review the standards in 2013. The ground-level ozone standard was last revised in 2008, but the Bush Administration did not tighten them as much as environmentalist groups had wanted.
The text of the President's statement released by the White House is below the jump.
Over the last two and half years, my administration, under the leadership of EPA Administrator Lisa Jackson, has taken some of the strongest actions since the enactment of the Clean Air Act four decades ago to protect our environment and the health of our families from air pollution. From reducing mercury and other toxic air pollution from outdated power plants to doubling the fuel efficiency of our cars and trucks, the historic steps we've taken will save tens of thousands of lives each year, remove over a billion tons of pollution from our air, and produce hundreds of billions of dollars in benefits for the American people.
At the same time, I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover. With that in mind, and after careful consideration, I have requested that Administrator Jackson withdraw the draft Ozone National Ambient Air Quality Standards at this time. Work is already underway to update a 2006 review of the science that will result in the reconsideration of the ozone standard in 2013. Ultimately, I did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered.
I want to be clear: my commitment and the commitment of my administration to protecting public health and the environment is unwavering. I will continue to stand with the hardworking men and women at the EPA as they strive every day to hold polluters accountable and protect our families from harmful pollution. And my administration will continue to vigorously oppose efforts to weaken EPA's authority under the Clean Air Act or dismantle the progress we have made.
Rich, Dumb, Lazy (But Politically Active) Jews?
Republican presidential candidate Mitt Romney is facing a new challenge: He's having trouble raising money from some Jewish donors who mistakenly believe one of his opponents, Michele Bachmann, is Jewish.Some Jewish donors are telling fund-raisers for Romney, a Mormon, that while they like him, they'd rather open their wallets for the "Jewish candidate," who they don't realize is actually a Lutheran, The Post has learned.
"It's a real problem," one Romney fund-raiser said. "We're working very hard in the Jewish community because of Obama's Israel problem. This was surprising."
I have a hard time believing that there are Jews (or anyone) who are (a) rich enough to be solicited by the Romney campaign; (b) sufficiently interested in politics that they donate to political campaigns; (c) dumb enough not to be aware that Michelle Bachmann is not Jewish; and (d) too lazy to even read her Wikipedia entry.
I suspect that either the fund-raiser in question was pulling the reporters' leg, or perhaps came up with a really lame off-the-cuff rationale for why he's coming up short in soliciting Jewish donors.
Don't Screw Around with that State Whose Capital is Austin:
So here's a steamy little trademark dispute: The Texas Dep't of Transportation is suing Hachette Books to enjoin publication of Christie Craig's "Don't Mess with Texas," on the ground that it dilutes TxDOT's trademark. Though I confess that I probably wouldn't be wasting my time or yours on this if the book didn't contain phrases like "She glanced down at his sex, still standing completely erect," and "Pleasure exploded inside her and her entire body shook with sweet spasms of release," (and a host of similarly cringe-inducing prose, quoted in more detail in the article linked to above; I must say, if this is what passes for pornography these days, I'm in the wrong business), the case actually illustrates a couple of interesting things about trademark law.
To begin with, notice that the action is for "dilution" of the trademark, not "infringement." TxDOT apparently has a trademark in this phrase by virtue of its use as part of TxDOT's anti-littering campaign (Get it? Don't Mess with Texas). Fair enough — but a trademark infringement action would require the DOT to show that consumers are confused about the source or goods or services as a consequence of the infringing use — that is, that consumers think that the book "Don't Mess with Texas" is somehow connected to the DOT — a fairly preposterous claim (even in Texas).
Trademark dilution, though, is different — a trademark can be diluted even if consumers are not "confused" by the offending use, as long as the use causes the mark to become less distinctive. The example usually given is something like "Imagine that dozens of services or products (hair care, automotive supplies, legal services, dry cleaning services, electronic pagers, . . .) were all called "Nike," or "Buick." Consumers wouldn't be confused into thinking the trademark owners had branched out into these unrelated businesses — but the value of the mark would decline over time, as its distinctiveness wore off as a result of such common usage. Dilution also lies where the mark has become "tarnished" — a mark associated with cleanliness and propriety and good behavior (like this one — anti-littering, remember?) which is now being associated with, in DOT's words, "graphic references to sexual acts and states of sexual arousal." [Start distributing, say, Mickey Mouse condoms, or Star Wars vaginal lubricants, and the cease-and-desist letter you'll get, probably the following day, from the trademark owners will tell you all you need to know about tarnishment . . .]
The cause of action for dilution, though, is only available for "famous" marks. You can understand why it is restricted in this way; because it involves suppressing uses of trademarks even in situations where there's no consumer confusion, dilution is potentially very troublesome from a free speech perspective, and widespread use of the dilution remedy would give all trademark owners potentially vast control over the use of the English language without providing any real benefit to the public.
This is where, in my opinion, TxDOT's claim is going to founder. "Don't Mess with Texas," to be sure, is a very famous phrase — but it is not a famous trademark. I don't know about you, but I never heard of the anti-littering campaign labelled with that mark, and I suspect most people haven't heard of it either. This is just what dilution law is supposed to avoid: giving the first person who happens to use the phrase "Don't Mess with Texas" in connection with some goods or services complete control over use of the phrase, even for entirely unrelated goods and services, forevermore. So for better or for worse, I think the book stays on the shelves.
[Thanks to Q. Boyer for the pointer]
My Last Post as a Guest Blogger: Thanks and Adieu
This marks my last post as a guest-blogger for Volokh Conspiracy. I am very grateful and honored that Eugene V. has allowed me the opportunity.
During the last week or two, I think I have caught the bug for blogging. I can announce today that as of next Monday (Sept. 5) I will become one of the official bloggers for Ricochet.com.
Earlier in the week, I discussed a number of topics on which I planned to blog. I covered all of those topics, except one: my description of the anti-newsroom. I'm sorry I didn't get to that. I hope to do so on Ricochet. (But you can get that discussion by reading Chapter 11 of Left Turn.) Also on Ricochet, I hope to respond to some of the criticisms of my media-bias work that have come from fellow social-science professors.
One reason that I did not cover the latter topics is that I spent more time than I expected responding to comments of VC readers and one VC blogger.
Throughout the week, I was reminded of the time when Jesse Ventura became governor of Minnesota. The day after the election, a newspaper quoted a professional wrestler with whom Ventura had worked. As best I can remember, here is the quote from that wrestler: "Jesse actually wasn't that great a wrestler. What he was really good at was getting the audience into a screaming match against him."
I think I may be the Jesse Ventura of bloggers.
While my blogging style may emulate a fake fighter, my first blog post at Ricochet will be about a real fighter, Manny Pacquiao. Specifically, I will break a story (as best I can determine, no media outlet or blog has ever reported it) that involves Pacquiao, one of his sponsors, Nike, and one of the most moving sights I've ever seen. I hope that many of you will follow me to Ricochet to read the story.
Market Failure vs. Government Failure
Nobel-laureate economist Gary Becker provides a useful reminder that the existence of widespread "market failures," such as those that contributed to the financial collapse and subsequent recession, does not by itself justify government intervention. However bad markets may be at times, there's no guarantee that government will be better. Here's an excerpt from Becker's op-ed.
The traditional case for private competitive markets goes back to Adam Smith (and even earlier writers). It is mainly based on abundant evidence that most of the time competitive markets work quite well, usually much better than government alternatives. The main reason is not that individuals in the private sector are intrinsically better than government bureaucrats and politicians, but rather that competitive pressures discipline market behavior much more effectively than government actions.
The lesson is that it is crucial to consider whether government regulations and laws are likely to improve rather than worsen the performance of private markets. In an article "Competition and Democracy" published more than 50 years ago, I said "monopoly and other imperfections are at least as important, and perhaps substantially more so, in the political sector as in the marketplace. . . . Does the existence of market imperfections justify government intervention? The answer would be no, if the imperfections in government behavior were greater than those in the market." . . .
Government regulations and laws are obviously essential to any well-functioning economy. Still, when the performance of markets is compared systematically to government alternatives, markets usually come out looking pretty darn good.
At one level this argument is self-evident — no set of institutional arrangements operates as well in practice as in theory — but it is regularly forgotten in policy debates. As Becker observes:
The widespread demand after the financial crisis for radical modifications to capitalism typically paid little attention to whether in fact proposed government substitutes would do better, rather than worse, than markets.
Indeed, when many policymakers see a potential market failure, they almost inevitably call for government intervention to restrain market excesses. Yet when government fails, interestingly enough, the proposed policy solution is often the same: more government intervention. The point here is not that government intervention is never justified — Becker himself believes some government regulations are "essential" — but that it must be justified with serious comparative analysis considers the possibility government may fail as well.
WSJ Hearts Huntsman
Earlier this week, former Utah Governor Jon Huntsman introduced an ambitious economic plan, including an income tax overhaul that would create a flatter, fairer and more efficient tax code by eliminating all income tax deductions and creating three relatively low rates. Like other GOP candidates he also called for repeal of the Dodd-Frank and health care reform laws, adding part of Sarbanes-Oxley for good measure. Huntsman has not (yet?) impressed GOP primary voters — and I'm still not sure what to make of him — but the WSJ editorial board was impressed, calling his plan "as impressive as any to date in the GOP Presidential field, and certainly better than what we've seen from the front-runners."
September 1, 2011
Delaware Law Weekly on Widener's Suspension of Prof. Connell
The Delaware Law Weekly has an interesting story filling in the details of the recent resignations at Widener law school over the university's suspension of Professor Lawrence Connell. (Hat tip: Legal Insurrection) It begins:
Robert Taishoff has resigned from his position as chairman of Widener University School of Law's Campaign Committee in protest of the university's suspension of controversial law professor Lawrence J. Connell. The resignation is seen as a major loss for the law school because Taishoff was one of its most active alumni and had donated millions to the university.
Taishoff is not the only person affiliated with the law school to resign in recent weeks. Philip Trainer Jr., a corporate litigation attorney with Ashby & Geddes in Wilmington, also resigned this month from the law school's Board of Overseers. However, it is not clear if Trainer's resignation is related to the Connell suspension. Trainer declined to comment on the resignation.
In his resignation letter, submitted earlier this month to Widener Law Dean Linda J. Ammons, Taishoff indicated that he felt the sanctions the school imposed against Connell were excessive, especially after a university panel exonerated the professor of all but one of the charges against him.
"There was not a nexus between the remedy and the findings," said Taishoff in an interview with Delaware Law Weekly. "I'm not sure Dean Ammons' and President [James T.] Harris' recommendations matched the findings of the committee. The committee found that he did not commit sexual or racial harassment."
Taishoff later added, "The punishment they doled out did not match the offense he was found to have committed."
Here's more about Taishoff's $1.2 million gift to Widener in 2009.
Coincidentally, the AALS 2012 Annual Meeting in January will focus extensively on threats to academic freedom:
The theme for the 2012 Annual Meeting centers around academic freedom and academic duty – including threats to tenure and to academic freedom, and the concomitant academic duty obligations that arise out of our status as tenured professors. There have been many serious threats to academic freedom arising from the environment and the polity: a law faculty member arrested in Rwanda for his pro bono representation of an opposition candidate in an election matter there; a law faculty-journal editor sued for criminal libel in France for publishing a book review; law school clinics reviled for their work as well as threatened legislatively and in the courts in Maryland, Louisiana, Michigan, New Jersey, and in several other states; a law scholar sued for her research on family law, whose university chose not to indemnify her; a law review that pulled a piece from publication, following threats from the company criticized in the article; and other law faculty and non-law faculty punished for their views.
I wonder if the Connell suspension will become one of the case studies examined in detail during the AALS Annual Meeting.
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