Tuesday, July 21, 2009

Hughes v. Pair - Emotional Distress - Dirty Mouthed Justices

On July 2, 2009, the California Supreme Court decided Hughes v. Pair, in which the plaintiff alleged the defendant used his position as a trustee to seek sexual favors. After being rebuffed, the defendant allegedly said, "I'll get you on your knees eventually. I'm going to fuck you one way or another."

The Supreme Court affirmed the trial court's decision granting summary judgment in favor of the defendant, reasoning the conduct was not sufficiently severe or pervasive for liability under Civil Code section 51.9 or the common law tort of Intentional Infliction of Emotional Distress (IIED).

It is difficult to determine when summary judgment should be granted on the ground that conduct was not sufficiently outrageous or did not cause sufficient distress for purposes of a IIED claim. What is "outrageous" and what constitutes "severe" distress appear to be issues of fact that--in most instances--are left to a jury. It is hard to say what "no reasonable juror" would find "outrageous." Unfortunately, this decision does not help except to add another specific factual situation to the pile of failed claims. Has the court has simply given up on creating a more manageable standard?

Discussion of how life-experiences influence judging has been widespread with the Sotomayor nomination. This case provides a good example of how a adjudicator's life-experience and history can matter. A more thin-skinned court might see a threat to "fuck" someone over unless they have sex with them as "outrageous."

Also, the California Supreme Court did not hesitate to use the taboo word "fuck" when it was directly relevant to their decision. (Avoiding the word "fuck" in the Hughes opinion would have been somewhat incongruous with holding that the defendant's statement was not outrageous.) In contrast, the prudes in the United States Supreme Court could not bring themselves to write out (or say during argument) the dangerous "F- and S-Words", otherwise known as "indecent expletives," in its recent Federal Communications Commission v. Fox Television Stations, Inc opinions. Will Sotomayor bring some of the language of Bronx to the court?

Wednesday, June 17, 2009

Some Mind Matter Over Other Mind Matter

interesting discussion
regarding how, or whether, scientific understanding of our moral intuitions may impact our moral reasoning and decision making.

Tuesday, June 09, 2009

The Vice Nominee

Akhil Amar and Ian Ayres suggest that Obama could nominate a Supreme Court justice before there is any indication that there will be an opening on the court, allowing for a quick replacement to occur in the event of a sudden retirement or death. Sounds fine enough, but the idea is seriously flawed.

First, the nominated person's life would be placed in limbo until a death or retirement, and the nominee may never get a chance to sit on the court if no openings occur before the next presidential election. If the nominee were a sitting judge, as most recent nominees have been, they might feel political pressure in making interim rulings--knowing the nomination could be placed in jeopardy.

Second, the pre-selected nominee might encourage a sitting justice to retire early or to hold on as long as possible. Alternatively, pre-nomination might allow for easier deal making for sitting justices to influence the selection of their replacement. The issue is debatable, but I think most would agree that a sitting justice should not have significant control over selecting their replacement.

Third, pre-selecting a nominee (in the absence of a deal where a justice has agreed to retire) is not in the interest of the President because, prior to selection, the President has the option of changing his or her intended selected replacement. In general, having an option is better than not having an option. In addition, the extended period between selection and final confirmation would increase the possibility of embarrassing revelations or events that might cause the President to retract the nomination. Retracting a nomination is distracting and difficult, causing more voter dissatisfaction than not having selecting a particular individual in the first place.

Also, pre-selecting a second nominee (before a first nominee is confirmed) may change the willingness of the Senate to consent to the appointment of the first nominee. If the second nominee is slightly preferred to the first, why not vote down the first nominee?

Monday, June 08, 2009

Judicial Recusal and Increased Litigation

The US Supreme Court decided Caperton v. A.T. Massey Coal Company, Inc. today, holding that due process required a state supreme court justice (Justice Benjamin) to recuse himself from hearing an appeal where the CEO of one of the parties (Blankenship) spent millions of dollars to elect that justice (the efforts constituted more than half of the money spent to elect the justice).

As stated by the majority, this was an extreme case where “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” The most conservative members of the court dissented, but not on the ground that the state justice's decision to hear the appeal was appropriate. Instead, the dissenters were concerned with increased litigation: They argued that the majority's rule--that a judge must recuse themselves where there is a “probability of bias”--does not provide judges or litigants with "clear, workable guidance" for when recusal will be constitutionally required. Because the rule is not clear, there will be an increase in claims and motions to disqualify judges and, consequently, an increase in litigation over questions left unanswered by the majority opinion. For his part, Justice Roberts provides 40 questions as examples of "a few uncertainties that quickly come to mind." And Justice Scalia believes that litigation over the recusal issues will, more often, delay our "seemingly interminable legal proceedings."

The dissent appears to ignore the fact codes of judicial conduct provide more protection than due process requires. As a result, in what cases will a Caperton claim be made? Claims for recusal in state and federal trial courts and intermediate appellate courts will be no different: motions will continue to be made under the more stringent codes applicable in each jurisdiction. A prudent litigator may include a citation to Caperton, but there will be no change in the amount of litigation. Only in cases where a state supreme court judge or justice fails to recuse him- or herself or where the state supreme court completely fails to enforce its own judicial code is there the possibility of further litigation in the US Supreme Court. I predict the Supreme Court will hear, at most, one or two more case like this in the next decade, if only to establish what is clearly not an "extreme case."

Justice Roberts also believes that the "inevitable" "increase in allegations that judges are biased, however groundless those charges may be . . . will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case." This is a curious defense of the judiciary. First, it ignores that litigants often make allegations of bias regardless of whether there is a legal remedy for the claim. If Roberts's dissent was the majority opinion, it would not eliminate allegations of a biased judiciary, but confirm them. Second, his argument conflicts with basic judicial principals, including access to the courts and freedom of speech. Anyone may file a complaint with spurious allegations; it is litigation that will hopefully discover the truth or falsity of the allegations. Finally, it is implausible that "the public" will be aware of any increase in motions to recuse. Instead, most people are only aware of their personal experiences with the courts, or extreme cases of apparent abuse that gain media attention, such as Blankenship's assistance in electing Justice Benjamin.

Justice Roberts complains that "[t]oday’s opinion requires state and federal judges simultaneously to act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?), and psychologists (is there likely to be a debt of gratitude?)." However, he (and the other justices) routinely act as political scientists, economists, and psychologists when deciding cases. Ironically, the analysis in Roberts's dissent cannot be separated from Justice Roberts's thoughts on political science (Blankenship's participation in the election probably did not influence the election or Justice Benjamin's decision), economics (the cost of litigating recusal claims will outweigh the benefits of removing biased judges), and psychology (the public's perception of judges will be harmed through litigation of groundless recusal claims more than allowing judges with an appearance of bias to rule on cases).

I agree with Justice Roberts that it may be difficult for judges to act as social scientists. But legal reasoning is often founded upon one's implicit views regarding the social sciences.

Thursday, June 04, 2009

The Prop 8 Decision

As previously stated, I believe it is a violation of equal protection to deny same sex couples the legal rights available to opposite sex couples: retaining "traditional" marriage constitutes impermissible sex-discrimination, sexual-orientation discrimination, and religious discrimination. However--after looking at the cases regarding whether a change to the Constitution is an amendment or revision--I also agree with the decision to uphold Proposition 8 as a valid amendment of the California constitution.

My main complaint about the opinion is the holding that same sex couples married between the time In Re Marriage Cases was decided and the passage of Prop 8 will continue to be recognized as "married" by the State of California. The court reasoned, the proposition (i.e., “Only marriage between a man and a woman is valid or recognized in California”) did not contain "a provision explicitly stating that the measure is to have retroactive effect,"the "'plain language' of the measure" was insufficient because, in past decisions, the use of the present tense ("is valid and recognized") did "not clearly demonstrate that the measure is intended to apply retroactively," and it is not "very clear from extrinsic sources that . . . the voters must have intended a retroactive application."

The reasoning is flawed because the proposition was clearly not intended to create a limited class of gay couples that the state would recognize as "married" and another class that is not married, but enjoys the same legal rights though a civil union. The absurdity of the result compels a different holding. The opinion is very long, but spends little time addressing this issue. The cases the court cited in support,
(See, e.g., McClung v. Employment Dev. Dept. (2004) 34 Cal.4th 467, 471 [holding statute providing that “ ‘an employee . . . is personally liable for any harassment . . . perpetrated by the employee’ ” (italics added) does not apply retroactively to harassment committed before the enactment]; Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 842 (Myers) [holding statute providing that “ ‘there exists no statutory bar’ ” for claims of smokers “ ‘who have suffered or incurred injuries’ ” (italics added) does not apply retroactively to impose liability on tobacco company for sales occurring during period in which tobacco companies enjoyed statutory immunity].)
both involved whether a party would be liable for conduct that they could not be held liable for at the time they engaged in the conduct. Here, the proposition does not attempt to impose any liability on a same sex couple, or change their substantive legal rights, but rather, merely states that California will not recognize the marriage as a "marriage," but a "civil union."

Monday, May 26, 2008

And the Spice

Cooling Clothes: "What life should you do in the future of Global warming, and I think that the fashion that acquires the consumer electronic affords the enjoyment and the spice."

Tuesday, May 06, 2008

Rafael Lozano-Hemme

Rafael Lozano-Hemmer's projects are generally pretty amazing. Here is a presentation he gave last year.

Saturday, April 05, 2008

The Building Constitution

The latest post in Jack Balkin's posts on living constitutionalism expresses many thoughts I have had regarding the purpose and the role of constitutional interpretation. It contrasts the view that (1) the constitution provides a framework (in some places specific, some places vague, and some places silent) that political institutions fill out over time and modify as the knowledge and sensibilities grow and change with the view that the constitution is a integrated document with (2) all meaning and application is bound by the expected application in the late 1700's.

Not explicitly included in the constitution were instructions on how the judiciary and others should interpret and apply the founding document. To determine how the document should be interpreted, any good originalist or textualist should agree that the we should look to the works of the Constitution itself and the practices at the time for clues as to how it should be implemented. Balkin makes the persuasive point that in many places the Constitution is written with broad language, particularly section 1 of the Fourteenth Amendment:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Thursday, March 06, 2008

Same Sex Marriage

So, the Cal. Supreme Court heard oral argument in In Re Marriage Cases a couple days ago. I listened to some of it here. I didn't think the lawyers on either side were making the best arguments they could. I found it particularly odd that the lawyer for San Francisco didn't think the State of California could not simply create an equal system through eliminating the word "marriage" and call all State sanctioned unions "civil unions" and leave the word "marriage" to individuals and their religions.

There was a good deal of discussion of whether limiting marriage to male-female couples is discrimination based on sex or discrimination based on sexual-orientation, and if the latter, should rational-basis or a heightened level of scrutiny be applied. The court of appeal below decided that the law is not sex discrimination and rational basis review applies. I have previously argued that the restriction is facially discriminatory based on sex (not just sexual orientation), and the court of appeal was able to overlook this fact because of the reflexive nature of the limit

The court of appeal adopted the argument that all people have the same limitation: they cannot marry a person of the opposite sex; therefore, no sex discrimination. However, a more careful analysis is reveals two different rules: (1) men may not marry men; and (2) women may not marry women. Each of these rules is specific to gender and each is sex discrimination. Only men are prevented from marring men, and only women are prevented from marrying women. Clearly men and women are being treated differently, despite the reciprocal nature of the discrimination. It is often argued that limiting marriage only affects individuals who are homosexual. Therefore, it is only sexual-orientation discrimination. This argument is not entirely convincing. Consider a pair of laws that disallows men from working as teachers and women from working as reporters. Clearly the law discriminates on the basis of sex, even though only a narrow portion of the male and female population desire to be teachers and reports, respectively. The laws really only affect sub-categories of "didactically-orientated males" and "inquisitive-orientated females." Similarly marriage limiting laws create two rules, one imposed on all men and one on all women that have their most significant affects on sub-populations of those who desire to be with people of the opposite sex. In either case, the discrimination is still based upon sex.

Here is another idea. Perhaps much of the confusion over the marriage question comes from the many different asserted justifications for the legal status. I identify the following purposes: (1) raising children (through providing a sense of unity, commitment for long term obligations, tax breaks, shared income and responsibilities, etc.), (2) romantic companionship, (3) platonic companionship, (5) mutual support obligations, (6) unification of family assets and efficient use of resources, and (7) religious requirement. Generally, more than one of these categories applies to any marriage. However, I imagine there are plenty of marriages without any one of the identified purposes. Now, whether restricting marriage to male-female couples appears to be sex or sexual-orientation discrimination, or both, depends on which purpose you are mainly concerned with. Lets have a chart:

Reason for Marriage

Sex Discrimination?

Sex-Orientation Discrimination?

Other Discrimination?










Mutual Support









Yes, Religious

Its probably not so clear what I'm getting at here. It is this: with respect to each stated purpose of marriage, it may matter if the couple is same sex or not. If marriage was simply raising kids or a very close platonic commitment between two people, a person's sexual orientation would not necessarily have a bearing on who someone would choose to marry. Thus, for many of what we consider to be the most important aspects of marriage, its not about sexual attraction, but about something else. Of course, there is an assumption of sexual attraction and generally people have such desire, making a purely platonic marriage unlikely (except in the case where a couple that once had such attraction looses it, and the other purposes remain). If the purpose of marriage is to meet a religious obligation, limiting marriage would constitute discrimination against those whose religion allows for same sex marriage.

Saturday, March 01, 2008

Intent and Experimental Philosophy

Two stories:
The vice-president of a company went to the chairman of the board and
said, ‘We are thinking of starting a new program. It will help us increase
profits, but it will also harm the environment.’

The chairman of the board answered, ‘I don’t care at all about harming the
environment. I just want to make as much profit as I can. Let’s start the
new program.’

Did the chairman intend to hurt the environment?
The vice-president of a company went to the chairman of the board and
said, ‘We are thinking of starting a new program. It will help us increase
profits, and it will also help the environment.’

The chairman of the board answered, ‘I don’t care at all about helping the
environment. I just want to make as much profit as I can. Let’s start the
new program.’

Did the chairman intend to hurt the environment?

A common answer to given to question one is yes; to question two, no. Even though in both situations the chariman had knowledge of a result (i.e., harm or benefit to the environment), but not purpose to cause the event (i.e., his purpose was purely an interest in money). So why the different answers?

I have three thoughts:
(1) In the first story we are comparing costs and benefits (money v. environment), and in the second, there are only benefits (money + environment). In the first situation, depending upon a person's values, they will or will not make the product. In the second, everyone would make the product because there is no downside. This distinction suggests that people's definition of intent depends upon whether a choice needs to be made. In the second story, there is really no choice at all.

(2) Most people can readily think of something that harms the environment, while often "environmentally friendly" products are really something that tends to cause less harm, rather than reducing harm in an absolute sense. For example, driving a hybrid does not remove carbon dioxide from the air, but merely introduces less carbon dioxide. So, when someone thinks about these two stories, they are likely to have a background understanding that the employee in the second story is not actually saying the product will help the environment (for example, a product that removes pollution from the air), but merely cause less of an effect or no effect on the environment.* This background knowledge may influence what they consider intentional. In the first situation there appears to be a change from the status quo to a more polluted environment, in the second, it could be the case that the product merely maintains the status quo instead of making the environment more polluted. If this is the basis for the distinction, it suggests a distinction between action and inaction in determining what is "intentional."

(3) These two ideas different from the initial thoughts of the experimenter, Joshua Knobe, raises concerns that using this type of "experimental philosophy" is not that useful because it is difficult or impossible to (a) eliminate "background" facts in the questionee's mind (even if a question says "assume...," people will not necessary be able to completely eliminate their feelings regarding the probability of the stated assumption), or (b) determine what are the material differences between the two questions.

Wednesday, December 26, 2007


One of the most powerful arguments against capital punishment is that many individuals have been revealed to be innocent while waiting on death row. The risk of killing innocent people is too great.

Our laws establish a two step process of applying punishment: first the jury determines whether evidence of a wrongful act is demonstrated to a particular burden of proof; then, the punishment assigned for that wrongful act is applied. For civil disputes, the burden of proof is generally more likely than not; for criminal prosecutions, the burden of proof is beyond a reasonable doubt. In death penalty cases, in general, the jury first determines guilt beyond a reasonable doubt; then, the jury determines whether the crimes and the offender are sufficiently despicable to warrant the penalty of death, taking into account a variety of factors.

Personally, I feel--assuming the death penalty is worthwhile in the first place--capital punishment should not be limited to the most despicable crimes; rather, death should be limited to those individuals who we are absolutely certain have committed the crimes they are accused of.

I suggest that, for death penalty cases, guilt should be determined by a beyond a reasonable doubt, but the punishment of death may be imposed only where there is "irrefutable evidence" of guilt. Such a standard would allow imposition of death penalties where the evidence of guilt is overwhelming, eliminating the risk of killing an innocent person; it will satisfy the preference of many Americans to kill the worst offenders; it would allow judges to independently and dispassionately evaluate the evidence to ensure a possibly innocent person is put to death; it will also allow plea bargains to put the offender in prison for life without the need for a costly trial. Plea bargains are also useful in some instances to gain information from the offender regarding accomplices or information regarding the location of victims.

Such a standard also might reduce the impact of conscious or unconscious racism in the application of the death penalty.

Wednesday, October 10, 2007

"The tyranny of the market"

Joel Waldfogelexplains the idea behind his book: sometimes the market will not address the desires of minority groups. While this is true, most of the time there is not much society (through government) should do about it. Exceptions include things like mandates to accommodate the disabled. I have thought about the tyranny of the majority through individual market choices before, but I think the problem comes more with the creation of societal norms. For example, once enough people acquire a cell phone, or check their email daily, or do some other activity, others will be expected to do the same. These unwanted expectations can be aggravated through social status competition. How many young couples spends thousands or tens of thousands of dollars more on a wedding because of modern American cultural norms regarding what is acceptable?

Friday, September 07, 2007

Keep on whining

Tyler Cowen is upset at people who purchased iphones that are now complaining about the announced price cut: "It is you people, you who resent Coase (1972), you people who induce wage and price stickiness and widen the Okun gap. . . . AAARRRGGGHH!"

I understand how Tyler feels in some ways. Why should a person complain simply because another person gets a better deal. It should have no effect on whether the deal you received was good. However, there are at least three answers to this:

First, people are not just concerned about whether they have purchased an item that is worth more to them then the amount of money they have paid, they are interested in getting an item at the best price possible (or a "fair" price). Lets say the iPhone was worth $1000 to a particular customer, she has a consumer surplus of $400 when she purchases the phone of $600. That is a good deal, but if the consume was able to buy it for $400, they would have $200 to purchase other items, increasing their utility to at least $1200.

Second, Apple sells a product, but they also sell an (exclusive) culture. By increasing the number of people who can buy, they reduce that exclusivity. When a person purchased the phone for $600, they expected the price and the level of exclusivity to remain that high for a period of time (at least a year, let's say). When Apple reduces the price, it just reduced the value after the purchase was already made.

Third, Apple breached a custom that has value: selling a product at the same price to each consumer. It might be efficient for many companies to sell products at different prices to different consumers in order to extract the maximum revenue. And this could benefit most people by encouraging the production of valuable products, increasing the number of people who will want to purchase an item, and lower prices for many consumers. However, variable prices come with their own costs. When people know prices might change it adds an incentive to try to get the lowest price possible. This could encourage people to delay purchases, to invest time into investigating price changes, and generally increase transaction cost. Ever know someone who spent every day checking flight information looking for price drops? Ever tried to find out the real price of a car? Getting a good deal can be a pain in the ass. Having a norm of giving everyone the same price reduces these transaction costs.