U.S. Legal Blog » Law and Society

Burka Controversy Coming to America

Bryan Lieb — Wed, 26 Aug 2009 16:58:43 +0000

CNN flags a First Amendment clash.

Can a Muslim woman wear a burka/niqab while testifying in court? Michigan small-claims court judge Paul Paruk said no, ordering Ginnah Muhammed to remove her religious head covering so that he could observe her temperament and demeanor during her testimony.

Muhammad refused, saying that she was a practicing Muslim and would take off the veil only in front of a female judge.

Paruk said a female judge was not available and told Muhammad she could remove the niqab or have her case dismissed — she chose the latter, according to court documents.

She sued the judge in federal district court, which declined to exercise jurisdiction over the case. Muhammad has since appealed to the 6th Circuit Court of Appeals.

Yesterday, the Michigan Supreme Court issued an order instituting a rule change allowing courts to exercise reasonable control over the appearance of parties and witnesses for the purpose of observing demeanor and assuring proper identification.

I think this will play out thusly:

Even under the most strict scrutiny applied by the United States Supreme Court to Constitutional issues, Muhammed’s argument – that the Michigan rule violates her First Amendment right to be free from laws prohibiting the free exercise of her religion – will fail.

She may believe that the rule IS interfering with her religious beliefs, but the rule isn’t targeted at her or her religion. It’s aimed at head coverings in a courtroom setting, and for very practical (and essential) purposes. The government has a fundamental and compelling interest in the equitable administration of justice, and this incidental infringement will be allowed.

There is no less restrictive means. The request for a female judge fails on at least two grounds. First, it would institutionalize gender discrimination in these cases, there being no rational basis for distinguishing between a male or female judge in this situation. Second, it’s an affront to the principle of judicial economy. Already-crowded court dockets would be further confused by attempting to rearrange assignments for the purpose of obtaining a female judge. What if there were no female judges available in the jurisdiction? Absurdity results.

In America, you’ve never had to check your religion at the courthouse door. Oaths are taken on the religious text of your choice, or simply sworn to. But if your religion interferes with the long established procedures and practices essential to the fair and equal administration of justice, you are materially and adversely affecting other Americans, and thereby crossing the Constitutional line.

Caperton v. Massey: Preserving Faith in Fairness

Bryan Lieb — Fri, 26 Jun 2009 18:04:02 +0000

To allow, or to forbid, a judge’s judging a case when one litigant has pumped millions of dollars into the judge’s election campaign. How best to preserve Americans’ faith in the integrity and fairness of our judicial system? The U.S. Supreme Court faced just this question in Caperton v. Massey, a suit between rival West Virginia coal companies. The closely divided Court issued its decision earlier this month. The three opinions totaling just 40 pages are a breeze to read compared to the Supremes’ more lengthy screeds – if you’ve never read a Supreme Court opinion, try this one.

Caperton’s coal company had sued the Massey coal co. for many misdeeds, winning a $50 million jury verdict. Massey appealed. Prior to the appeal’s hearing date, however, the West Virginia Supreme Court of Appeals had an election. Massey’s CEO Don Blankenship poured over $3 million (almost 3/4 the total spent) into the campaign of Brent Benjamin, who managed to unseat his incumbent opponent in a close election.

When the appeal of the $50 million verdict came before newly-minted Justice Benjamin, he refused to recuse himself – despite Caperton’s stringent objections that he was biased, or appeared to be, due to Blankenship’s huge contribution to his election. Benjamin said he had no direct pecuniary (monetary) interest in the outcome of the case, and there had been no objective information offered to show he had a bias or had prejudged the outcome. Ultimately, in the court’s 3-2 decision for reversal of the damage award, Benjamin voted to reverse.

Caperton appealed this reversal (and Benjamin’s failure to recuse himself) to the U.S. Supreme Court on the Constitutional question of whether Benjamin’s refusal to step aside violated Caperton’s Fourteenth Amendment right to Due Process (procedural fairness). And how could it not? The outcome reeks of unfairness, does it not? It appears unfair, or that there is a risk of unfairness afoot since we cannot know, finally and with certainty, whether or not Justice Benjamin was influenced – we’re forced to take his word for it.

A bare majority of the Supreme Court agreed, reversing the decision of the West Virginia court. In an opinion by pivotal swing-voter Justice Kennedy, five Supremes (Kennedy plus the liberal wing: Stevens, Souter, Ginsburg and Breyer) agreed that Benjamin had used an improper standard when considering whether to recuse himself. Kennedy states the correct standard in approximately three similar iterations (bold added by me):

(1) whether, under the totality of the circumstances, “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.”

(2) “not whether the judge is actually biased, but whether … there is an unconstitutional potential for bias.”

Most elaborately, Kennedy states (3a) the Court’s extant rule for treatment of Due Process issues, and then (3b) applies it to the case at hand, resulting in yet a third enunciation of the relevant test:

(3a) “[T]he Due Process Clause has been implemented by objective standards that do not require proof of actual bias. In defining these standards the Court has asked whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”” (citations omitted)

(3b) “Due process requires an objective inquiry into whether the contributor’s influence on the election under all the circumstances “would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.” In an election decided by fewer than 50,000 votes, Blankenship’s campaign contributions—in comparison to the total amount contributed to the campaign, as well as the total amount spent in the election— had a significant and disproportionate influence on the electoral outcome. And the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it “must be forbidden if the guarantee of due process is to be adequately implemented.”” (citations omitted)

The inquiry focuses on the appearance, the probability, the potential for bias under the circumstances – not on the presence or absence of actual bias (which only a mind-reader could know, if indeed the biased judge was aware of his or her own bias – for biases can be subtle and difficult to detect and acknowledge even within ourselves). Justice Kennedy observes that Caperton is an extreme case, and falls beyond the Constitution’s pale, even if it’s impossible to draw a bright line rule under which to precisely (objectively?) analyze future cases: “This Court’s recusal cases are illustrative. In each case the Court dealt with extreme facts that created an unconstitutional probability of bias that ‘cannot be defined with precision.’”

What gives me pause is Kennedy’s insistence on applying the lable “objective” to his construction: “objective standard,” “objective inquiry,” as I highlighted above. Yes, items of evidence are examined: the election was close, the campaign contribution was disproportionate, etc. – and no, there is no “subjective” attempt to determine if Justice Benjamin was actually biased. But in Kennedy’s (3b) test (above), doesn’t the objective/subjective distinction blur almost beyond recognition? In determining whether “all the circumstances would offer a possible temptation to the average judge,” don’t we have to know, or presume to know, quite a lot about the inner workings of the mind of an “average judge”? Even defining an “average judge” implies the accurate construction of a composite, median mindset.

Justice Roberts’ dissent (joined by conservatives Scalia, Thomas and Alito) elaborates on a related concern:

The majority’s analysis is “objective” in that it does not inquire into Justice Benjamin’s motives or decisionmaking process. But the standard the majority articulates—“probability of bias”—fails to provide clear, workable guidance for future cases.

Roberts proceeds to pose forty questions, attempting to make the case that the devil is in the details and the majority’s opinion gives no guidance on dealing with a variety of details that could occur in future cases. Roberts concludes:

The Court’s new “rule” provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.

Though I believe at least some subjective analysis is required to complete Kennedy’s inquiry, and I acknowledge it does not produce a bright-line rule, I could not disagree more with Roberts’ dissent. The Supreme Court was the last chance for justice to be done in this case. For justice to be done, Justice Benjamin could NOT be allowed to decide the case in favor of the company which had massively funded his election campaign (knowing that Benjamin would judge the case). For the Supreme Court to allow Benjamin’s participation would send a message to the public that justice can be bought – because that is the appearance, regardless of the reality (which we cannot know). If, in the absence of a bright-line rule, future cases must be decided on a case-by-case basis, so be it. Allowing Benjamin’s judgment to stand would have undermined public faith in judicial fairness.

Incidentally, Roberts’ forty questions (see the opion, linked above) invite perusal and, of course, answers. I started to go through them myself, and answers seemed obvious enough to me – so much so that I began to see the questions as an expression of petulance rather than an exercise in intellectual honesty. At least one Arizona lawyer, Keith Swisher, agrees. Swisher answered every question, concluding that only two or three of the forty qualified as legitimate. I tend to agree.

So was your faith in our judicial system preserved or eroded by Caperton v. Massey? If you enjoyed this article or have thoughts, feel free to leave a comment.

Toward a Better Administration of Justice

Bryan Lieb — Tue, 09 Jun 2009 18:50:27 +0000

At Slate.com, Daliah Lithwick writes about America’s prison problem and Senator Jim Webb’s (D-VA) upcoming effort to address it.

A couple of quotes from Lithwick’s column:

The United States, with 5 percent of the world’s population, houses nearly 25 percent of the world’s prisoners. As Webb has explained it, “Either we’re the most evil people on earth, or we’re doing something wrong.”

…

Webb also reminds us that while drug use varies little by ethnic group in the United States, African-Americans—estimated at 14 percent of regular drug users—make up 56 percent of those in state prison for drug crimes.

Good column, worth reading. Key an eye on Webb’s initiative.

School Bullying: Worse Than You Think

Bryan Lieb — Fri, 24 Apr 2009 21:26:37 +0000

Vicious, incessant bullying in school — primary school, 5th grade in this horrible case — is certainly a massively underestimated problem in this country, even with the substantial attention the issue has received in recent years. I wanted to rebroadcast this CNN story even with whatever meager signal this blog generates, because I think the more people that hear about this, the better — the more likely some significant changes can be instituted.

On April 16, eleven year-old Jaheem Herrera hanged himself in his closet and was found dead by his mother and young sisters. Jaheem made A’s and B’s in school. He was by any standard a cute kid (CNN photo, left). He had a best friend who sympathized with him over the bullying. He told his mother about it, and she had complained to Dunaire Elementary School administrators many times.

But Jaheem was repetitively called ugly, gay, snitch, and ”virgin” (latched on to by the bullies due to the happenstance that his family was from the Virgin Islands). The verbal abuse was predictably escalated to physical abuse — Jaheem’s 10 year-old sister said that he was choked in the bathroom. The Atlanta Journal Constitution’s extensive reporting on the incident notes:

In the wake of Jaheem’s suicide, other students’ parents have come forward to describe other alleged acts of violence at Dunaire. Some parents said their children were the victims of beatings with buckles and chokings.

Yet the school was reportedly a model with regard to anti-bullying policy (from the CNN piece):

Allegations of such severe bullying surprises experts familiar with the school district. It’s anti-bullying program was considered exemplary and includes programs to raise awareness and a specially trained liaison. Students are even asked to sign a no-bullying pledge.

Obviously, these policy trappings are not enough. Or badly executed. Or ignored down in the trenches. Conscientious vigilance and monitoring are what is required of the adult administrators and teachers on the scene. It shouldn’t be that difficult to spot and root out this viciousness if adult personnel are not turning a blind eye, taking a ‘boys will be boys’ attitude.

Jaheem Herrera’s case mirrors that of a Massachusetts boy, Carl Walker-Hoover, also eleven, who hanged himself to death after incessant taunting and bullying at school just a week prior to Herrera’s suicide. Walker-Hoover was also repeatedly called “gay,” among other pejoratives.

One expert said that, “Anti-gay language is really the ultimate weapon for a bully who wants to degrade his or her peers.” Needless to say, neither of these pre-pubescent children was actually a homosexual.

My thought on this is that it’s pervasive in our society. According to a study quoted by CNN, 65 percent of teens report they are bullied each year, and most believe adults can’t help them. Now I understand that only extremely rarely does this lead to suicide. But no child should have to endure a hellish environment of incessant verbal abuse (and the ever present threat of physical abuse) at school. An elevated level of motivated vigilance by school personnel – and significant discipline, including removal, of discovered bullies — can go a long way to solve this problem, in addition to standard anti-bullying campaigns.

If you have school-age children, please be sensitive to this issue and be prepared to act. If this sort of abuse can occur right under the nose of the administration at a “model” school, imagine what it’s like in schools that are “just average.”

Iowa Supreme Court Rules On Same-Sex Marriage

Bryan Lieb — Fri, 03 Apr 2009 16:57:41 +0000

CNN is reporting a unanimous decision by the Iowa Supreme Court, holding that a state law prohibiting same-sex marriage violates the equal protection clause of the Iowa Constitution. Iowa joins Massachusetts and Connecticut in allowing same-sex marriages. Read the court’s opinion, here. On page 63 of the opinion, the Court takes the unusual step of addressing an argument “left unspoken” by the government, that being religious opposition to same-sex marriage.

Cali Justices Unreceptive to Prop 8 Reversal

Bryan Lieb — Fri, 06 Mar 2009 21:53:57 +0000

The LA Times reports on yesterday’s Prop 8 oral arguments before the California Supreme Court:

The California Supreme Court strongly indicated Thursday it would rule that Proposition 8 validly abolished the right for gays to marry but would allow same-sex couples who wed before the November election to remain legally married.

Court-watchers gleaned the above prediction from the attitudes, questions and statements of the Justices as they interacted with lawyers at the hearing.

The court’s written opinion is expected within 90 days.

Prop 8 On Trial in California

Bryan Lieb — Thu, 05 Mar 2009 17:27:48 +0000

Good report at Hullabaloo.

There are three questions at play:

• Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

• Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

• If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

Oral arguments are in progress this morning.

Jones Day’s Strange War on Links

Bryan Lieb — Thu, 19 Feb 2009 17:13:25 +0000

I came across a disturbing internet/law story on Slate. Definitely a big issue for online reporting.

Jones Day is an international law firm (2,300+ lawyers). BlockShopper is a real estate news website.

According to the Slate story, Jones Day sued BlockShopper for trademark infringement when BlockShopper reported that two Jones Day lawyers had purchased certain real estate. The heart of Jones Day’s complaint was that Blockshopper had formatted the lawyers’ names with hyperlinks to the lawyers’ bios on the Jones Day website – a type of formatting you see everywhere online (I’m using it in the three hyperlinks above).

Trademark infringement is when you use someone’s trademark (or something confusingly similar) to sell your own products. Jones Day argued that using the lawyers’ hyperlinked names would make people think Jones Day was associated with BlockShopper. How and why, I am at a loss to explain. Per Slate:

The idea that readers of a real estate news site would somehow be confused by links to Jones Day, on the other hand, shouldn’t have passed the straight-face test. One legal blogger proposed that the attorneys who brought the suit take ethics classes. Paul Alan Levy of Public Citizen described the lawsuit as a “new entry in the contest for ‘grossest abuse of trademark law to suppress speech the plaintiff doesn’t like.’ ” The digital rights groups Public Citizen, Electronic Frontier Foundation, Citizen Media Law Project, and Public Knowledge tried to file a friend-of-the-court brief asking for the case to be dismissed.

Blockshopper fought the law firm for a while – wracking up “six figures” (!!!) in legal bills – but settled after a federal judge denied Blockshopper’s motion for summary judgment. The settlement is even more crazy than the lawsuit. Get this:

[T]he real estate site said it agreed to change how it links to Jones Day. BlockShopper will no longer use the names of Jones Days attorneys as anchor text. Instead, it will use the full and cumbersome URL. In other words, Timpone said, instead of posting “Tiedt is an associate,” the site will write “Tiedt (http://www.jonesday.com/jtiedt/) is an associate.” (The agreement also calls on BlockShopper to say that the lawyer in question is employed at Jones Day and that more information about the attorney is on the firm’s Web site.)

Talk about form over function! It changes nothing. Nothing! But it means the law firm controls how BlockShopper writes about it. What if lots of major companies dictated to news organizations the details of how hyperlinks must be formatted, with no consistent standard? It would be extremely burdensome trying to write a story while keeping all the requirements straight. I don’t think this type of restriction has a chance in court, and it’s too bad the case didn’t go all the way to a verdict. I’ll be interested to see if this sort of thing comes up again any time soon.

Large Hadron Collider: United States Answers Lawsuit

Bryan Lieb — Wed, 25 Jun 2008 22:16:21 +0000

I wrote earlier about the Large Hadron Collider particle physics funpark in (under) France, and the lawsuit filed in Hawaii by two scientists with concerns that turning the LHC on could Destroy the Earth.

The United States filed its response today, as reported on Alan Boyle’s “Cosmic Log” (MSNBC). The Government’s main objections are fourfold: (1) the statute of limitations has run, (2) the Federal Courts lack jurisdiction to block the LHC’s activities, (3) the plaintiffs have no standing, and (4) the court cannot provide any effective relief because the LHC would go on without US funding.

Um, what about the part about it being safe!?

Kidding. There’s a new safety report too.

The government is requesting summary judgment, but a hearing is not yet scheduled.

Meanwhile a petition is circulating the Interwebs:

Typically such momentous scientific achievements are inaugurated with profound words, such as Neil Armstrong’s “One small step for man, one giant leap for all mankind”, or when Oppenheimer famously quoted from the Bhagavad Gita upon the first test of a nuclear weapon. No doubt the Directorate of CERN will have prepared something similar to match this historic event.

However, we the undersigned feel something simple will suffice. Upon activating the LHC for the test, we advocate the opening words be “Commence Primary Ignition!“, a call back to the 1977 movie “Star Wars” when the villains destroyed the planet Alderaan with their Death Star.

Soon: the Heller gun case!

Large Hadron Collider: Front Row Seat to the Big Bang?

Bryan Lieb — Wed, 16 Apr 2008 20:47:20 +0000

On rare occasions, the disparate worlds of “the law” and “particle physics” collide (pun intended). Now is such a one.

This summer, the European Organization for Nuclear Research (CERN) will begin experiments with its Large Hadron Collider (LHC), an incredibly complex circular tube 27 kilometers long through which atoms and bits of atoms will be accelerated (in opposite directions) to a reported 99.9999991% light speed under the French/Swiss countryside. Upon attaining such speed, the particles will be smashed together head-on, and the resulting debris will be documented by sensors.

Wikipedia lists the following as some of the questions to be investigated (just breeze through):

Is the popular Higgs mechanism for generating elementary particle masses in the Standard Model realised in nature? If so, how many Higgs bosons are there, and what are their masses?
Will the more precise measurements of the masses of the quarks continue to be mutually consistent within the Standard Model?
Do particles have supersymmetric (”SUSY”) partners?
Why are there apparent violations of the symmetry between matter and antimatter?See also CP-violation.
Are there extra dimensions indicated by theoretical gravitons, as predicted by various models inspired by string theory, and can we “see” them?
What is the nature of dark matter and dark energy?
Why is gravity so many orders of magnitude weaker than the other three fundamental forces?

To which I, a devout man of science, reply: “Have we solved world hunger yet?” There, it’s been said — whether tongue-in-cheek… I, even I, can’t immediately decide. That dilemma however, is far from the point. Back to the collision of disparate worlds, and forward to the explosion of them.

Turns out, there are safety concerns:

Michelangelo L. Mangano, a respected particle physicist who helped discover the top quark in 1995, now spends most days trying to convince people that his new machine won’t destroy the world.

“If it were just crackpots, we could wave them away,” … “But some are real physicists.”

Mangano and his colleagues are pretty sure the device is safe. Among other comforting nuggets, they say that cosmic rays have been impacting at LHC-type speeds in the vicinity of Earth’s moon for eons, and the moon is still there.

Luis Sancho, a noted physicist and author, isn’t so sure. So concerned are Sancho and fellow physicist Walter Wagner, that they’ve — no joking — filed suit in the US District Court for Hawaii to block the start-up of the LHC until a detailed safety review has been completed and peer-reviewed. The two are irritated that a 1999 review for a less powerful collider in the United States is the only safety review posted by CERN for LHC, when a fresh review had been promised by Jan 1, 2008.

Sancho fears that either a microscopic black hole, or an ultra-dense ”strangelet,” (both of which are expected to be produced in the LHC by its proponents) could destroy Earth. LHC proponents claim that any black hole produced would instantly dissipate due to (theoretical) ”Hawking radiation” and any strangelet produced would be both unstable and wrongly charged to pose a threat, also dissipating in a virtual instant. Sancho notes that Einstein’s theories contradict the notion of Hawking radiation, and Einstein has mainly been proven right, eventually.

James Gillies, a CERN spokesman, told New Scientist magazine that fears were overrated:

The lawsuit’s claims are “complete nonsense.” “The LHC will start up this year, and it will produce all sorts of exciting new physics and knowledge about the universe,” he said, adding: “A year from now, the world will still be here.”

The world will still be here, unless they’re wrong, as Sancho notes in his affidavit:

As Nobelist Frank Wilczek, the author of a ‘safety document’ for the far less powerful RHIC collider, said at a conference at MIT:

“It was easy to make the report because if something goes wrong then … (‘shrugging his shoulders and laughing’)” …

Obviously meaning that neither he, nor CERN could be blamed, since the planet and all courts and citizens that might retrospectively judge their foolishness would be gone.

Here are some choice tidbits from Sancho’s affidavit, filed in support of his motion for a Temporary Restraining Order.

As of today, the exact probability of a possible runaway reaction that converts the Earth into strange matter, or converts the Earth into a black hole, is unknown, and is entirely dependent on alternative theories, which are still disputed. Those theories convert those experiments in probabilistic events similar to the toss of a coin: If theory A is right or Parameter C has certain unknown value we will become annihilated. If instead, theory B is right or Parameter C has a different unknown value, we will survive without any adverse consequence. …

CERN chooses selectively only those theories about black holes and dark matter that favor the position of ‘no risk’. It is for that reason that it promotes and affirms as an ‘absolute truth’ the outdated 1974 thesis of black hole ‘evaporation’ postulated by Dr. Hawking, explained in the previous paragraphs. Indeed, CERN bases all its hopes of human survival in its report of safety on 6 words: “Black holes will evaporate via thermal radiation”; 6 words that seem enough for CERN to calm mankind. Yet Thermal Radiation, the so-called “Hawking radiation”, is quite disputed, since there is not a single proof whatsoever that has shown that black holes will evaporate once created. …

Thus, we come to the conclusion that CERN will cause 2 events [creation of a stable black hole or a stable strangelet] that can destroy the planet, each with approximately a ±50% chance of occurring, as there are equally respectable, alternative theories and parameters in both cases for which no certain estimates can be made. On that basis, a simple calculation of probabilities shows that the real risk of these proposed experiments can be as high as 75% when we combine 2 possible events, each one with a 50% chance. …

In ethical, moral and hence legal terms (as I believe The Law is the practical expression of human ethics), it is self-evident that even a reduced possibility, as those initially considered by CERN, of a 1-10% chances of extinguishing the Earth, would create a “theoretical potential” 6 billion x 1-10% = 60-600 million potential legal holocaust victims, still the biggest genocide in the history of mankind. It would be also the biggest environmental crime of history, far more harmful than Global Warming, as it could mean the destruction of all life forms on this planet.

Ever heard the canard that our lack of evidence of other advanced civilizations in the galaxy could be due to their consistently obliterating themselves once their particle physics experiments reach a certain level? Makes you wonder.

What would it be like, to be sitting at your desk as the world is converted into strange matter or crushed in an expanding black hole in a matter of hours or minutes?

I felt a great disturbance in the Force, as if millions of voices suddenly cried out in terror and were suddenly silenced. I fear something terrible has happened. — Obi-Wan Kenobi, sensing the destruction of Alderaan

Supposedly (at bottom), there is an initial hearing scheduled before a magistrate judge in Hawaii on June 16. I will try to discover what info is available thereafter. Though I sympathize with their contrarianism, I figure Sancho and Wagner are probably wrong, and the Earth is safe. But it will be interesting to see how the court handles such heavy science. Let’s hope these guys don’t have to update their website. Like the old Chinese proveb says, you can bask in the glow of being right, or you can just bask in the glow.