Potter Stewart wrote an opinion in the 1974 case of Geduldig v. Aiello.  Not too many people remember the opinion, because it was mercifully murdered by changes in the law in 1978, when Congress used to enact laws.  The question before the court was whether California’s denial of disability benefits for pregnancy constituted invidious sex discrimination.  The Supreme Court held it did not, as it would be costly to pay for pregnancy-related disability, and saving money was a rational purpose.

The dissent by Justice Brennan, noted that the Court gave short shrift to the discriminatory aspect of the exclusion of pregnancy disability benefits.

When, as in this case, the State employs a legislative classification that distinguishes between beneficiaries solely by reference to gender-linked disability risks, “[t]he Court is not . . . free to sustain the statute on the ground that it rationally promotes legitimate governmental interests; rather, such suspect classifications can be sustained only when the State bears the burden of demonstrating that the challenged legislation serves overriding or compelling interests that cannot be achieved either by a more carefully tailored legislative classification or by the use of feasible, less drastic means.”

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Josh Blackman, who has been on the Supreme Court’s abortion protest buffer zone speech restriction case, McCullen v. Coakley, like a fly on shit lawprof, notes some very interesting language in Chief Justice Roberts’ opinion.

On a somewhat related note, another key limitation recognized in McCullen on crimes that regulate speech, is a requirement of intent. It’s not enough that speech may have an incidental effect that harms another. Rather, the speaker must have the intent to “intimidate” or “harass” someone else.

The second supposed defect in the alternatives we have identified is that laws like subsection (e) of the Act and the federal FACE Act require a showing of intentional or deliberate obstruction, intimidation, or harassment, which is often difficult to prove. As Captain Evans predicted in his legislative testimony, fixed buffer zones would “make our job so much easier.” Of course they would. But that is not enough to satisfy the First Amendment. To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.

The tailoring requirement does not simply guard against an impermissible desire to censor. The government may attempt to suppress speech not only because it disagrees with the message being expressed, but also for mere convenience. Where certain speech is associated with particular problems, silencing the speech is sometimes the path of least resistance. But by demand­ing a close fit between ends and means, the tailoring requirement prevents the government from too readily “sacrific[ing] speech for efficiency.”

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Stephanie West Allen sent me a link to a law student, Jacqueline Horani, who, after her first year, found a peculiar niche that interested her greatly.  She describes it as “the intersection of community & the law,” which clarifies nothing for me, but to her credit, she’s going for it.  She needs $1500 to fund her summer tour, and she turned to Indiegogo to get it.

The title of her pitch is “A law student’s adventure through the U.S. to discover the intersection of community & the law.”  She describes it as

Did you know…

that there are over 1,500 Intentional Communities, planned residential communities where people live together under a common vision/values, in the United States alone? Almost all of these communities have sustainability as an aspect of their focus; many create local organic farms, local businesses, and establish land trusts to protect open spaces from development.

Even if you don’t live in an intentional community, the more we make it easier and more successful for their establishment, the more organic produce, locally made jams, clothing, and cheeses, retreat centers and nature preserves the world can enjoy!  Plus, the more we learn from these microcosms of community, social experiments in collective resources, the better we can re-define and re-organize how we live our lives in cities, suburbs, and neighborhoods.

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Ask an engineer and he may be happy to explain the theory behind the little magic black box, whose digital readout is, standing alone, sufficient to put a person in prison.  When the Breathalyzer 5000 was accepted as proof of drunk driving, it became a fixture of the law.  There aren’t many bank robbers, but there are a ton of drunk drivers. We know because the box says so.

In time, the magic science of the box became the subject of scrutiny.  Experts questioned its accuracy, both internally and theoretically.  After all, it purported to measure the alcohol in a person’s breath, while the salient information was the alcohol in a person’s blood.  It gave a number, which conclusively proved a crime notwithstanding the absence of evidence that the number, at first .10 BAC and then lower and lower, as MADD gained influence and legislators had fewer criminal dragons to slay, that condemned people without regard to any real harm.

Prohibition may have failed, but we’ve never really gotten over the moralist’s hatred of evil intoxicating beverages.  And this black box made it easy-peasy to nail the culprits. Continue reading →

He begins by assuming the problem, which is always a cool trick when you have no empirical basis of a problem in need of a solution, but have a solution you really, really, feel needs airing. Ross Douhat’s column opens:

IN the debate over sexual violence on college campuses, two things are reasonably clear. First, campus rape is a grave, persistent problem, shadowing rowdy state schools and cozy liberal-arts campuses alike.

Second, nobody — neither anti-rape activists, nor their critics, nor the administrators caught in between — seems to have a clear and compelling idea of what to do about it.

Whether, and how severe, a problem campus rape is remains a question in need of an answer.  Even the White House’s task force report, which similarly announces the problem, simultaneously concedes they don’t actually have evidence of a problem and require study,  Maybe Douhat only skimmed the report. He’s a busy guy, I’m sure. Continue reading →

Members of the Harris County Criminal Lawyers Association is handing out big yellow cards to the people entering courtroom 14.

They read in part “the judge or court staff may try to get you to plead guilty or ‘no contest’ without a lawyer.”

A fascinating concept, particularly given that whole constitutional right to counsel thing.

The Harris County Criminal Lawyers Association (HCCLA) was the group passing them out in the halls. They told Eyewitness News they’ve heard too many complaints against Judge Michael Fields in the past few weeks.

“At this point, we’re concerned. It’s gone on for too long. We feel like it’s appropriate to step in,” said group president Carmen Roe. “They have the right to an attorney. They have the right to remain silent, they have the right to a jury trial. We believe those rights are not being given to these clients.”

The group accused Judge Fields and court staff with pressuring for guilty and no-contest pleas. They argued that strips defendants of their constitutional rights.

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The Riley/Wurie decision represents what I describe as a clean break from search and seizure law as it has grown since Weeks was decided 100 years ago.  At Slate, Judge Richard Posner poo-poos the decision:

The New York Times quotes a law professor as saying that “This is a bold opinion. … It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.” No, the opinion is not bold, it’s not the first computer-search case, we are not in a new digital age, and the court is not applying new rules. There have been a number of similar cases in the lower courts, many anticipating the court’s decision.

Apparently, nobody told Posner he’s not on the Supreme Court, so his opinions may not carry quite the same weight. But that’s not quite the core of his complaint. Rather, it’s the insane state of Fourth Amendment law.

The abiding puzzle of “search and seizure” is the insistence of the courts, including the Supreme Court, that the Constitution requires search warrants in all but emergency circumstances, in order to protect what we now call “privacy.” That is ahistorical. The Fourth Amendment protects people against unreasonable searches and seizures, but it does not require search warrants; on the contrary, it limits them, by requiring that they be based on probable cause, on oath or affirmation by the seeker of the warrant, and on a particularized description of the premises to be searched and the items (usually contraband) to be seized.

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This Slate post by Christin Scarlett Milloy is either the most insanely absurd post ever, or the best troll ever.  You decide.

Further, your affiant sayeth naught.

H/T Michael Weiss

The concept behind the National Labor Relations Board’s protection of concerted activity was premised on the days of sweatshops, robber barons and Pinkertons firing into the crowds of the powerless, downtrodden employees who wanted only the ability to join together so they could amass sufficient clout to negotiate with management.  As a wobbly once asked, is that so terrible?

But then, no one could foresee when Taft met Hartley that our society would mature to the point of a victimocracy, where the law would become the bludgeon of choice for all favored rights and entitlements.  At Overlawyered, Walter Olson points out the clash:

* “During a meeting about commissions, minimum wage, and employee breaks [at a Yuma, Ariz. car dealership], an employee lost his temper, angrily calling his supervisors words such as [obscenities omitted]. He also stood up, shoved his chair aside, and told them they would regret it if they fired him. Unsurprisingly, that tirade resulted in the employee’s termination. Astoundingly, in Plaza Auto Center (5/28/14), the NLRB concluded that the termination was an unlawful violation of the employee’s rights to engage in the protected concerted activity.” [Jon Hyman, Ohio Employer’s Law Blog; Brennan Bolt, Labor Relations Today] Continue reading →

Every once in a while, someone gets what they believe to be a brilliant idea, and by adding two plus two, ends up with 37.  If you squint your eyes, sing “lalala” really loud and argue the point by stringing as many unrelated words together as possible, it begins to make sense.  Except it doesn’t. It’s wrong. Dead wrong.

Via Radley Balko, the Massachusetts ACLU’s effort to get information under the Freedom of Information Act about SWAT teams was rebuffed under a novel, if bizarre, rationale:

As part of the American Civil Liberties Union’s recent report on police militarization, the Massachusetts chapter of the organization sent open records requests to SWAT teams across that state. It received an interesting response.

As it turns out, a number of SWAT teams in the Bay State are operated by what are called law enforcement councils, or LECs. These LECs are funded by several police agencies in a given geographic area and overseen by an executive board, which is usually made up of police chiefs from member police departments. Continue reading →