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Perceived Rule Constraints and the Public’s Distrust of Atheism

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A while back, a Gallup poll found that only 45 percent of Americans would be willing to elect an atheist as President. That spurred a further study at the University of Oregon and the University of British Columbia that found, perhaps unsurprisingly, that religious “believers” generally don’t trust atheists. Interestingly, though, atheists don’t even seem to trust themselves:

“What we find is that unlike typical in-group vs. out-group phenomena — like racism or nationalism — nonbelievers do not end up trusting their own kind more,” [Professor Azim] Shariff said. “While the degree to which someone’s belief in God — particularly the belief that being watched by this God makes people act better — did affect the strength of people’s distrust of atheists, those people who did not identify with a religion still tended to find believers to be more trustworthy. This makes sense both in terms of the mechanism we are suggesting underlies the effect — people trusting those who fear supernatural punishment — and in terms of atheists not being a strong and coherent in-group, in and of themselves.”

But perhaps punishment isn’t the whole story behind the distrust of atheists by believers and atheists. Perhaps religion provides something else important, especially in the political context: “rules” and predictability, even if artificial.

Most religions–at the least the biggies in America–offer a certain creed, a few particular mandates, or some simple (or not so simple) rules to live by. Of course, these “rules” are sometimes what attract people to religion in the first place. But from the outside looking in, those same rules offer a degree of predictability because we expect religious adherents to follow them. As a result, we might (at least think) we know what we’re getting.

Of course, the savvy religious follower can probably find a way to justify whatever he or she is doing within their own religious framework. And it’s a step of faith to believe that the rules will produce good results.

But nevertheless, the stabilizing force of religious-based rules or principles might explain why, for instance, politicians make reference to religion when offering a new initiative or advancing an argument. They want to assure us they’re playing by the rules, as Obama did in a 2006 AIDS Day speech:

We should never forget that God granted us the power to reason so that we would do His work here on Earth – so that we would use science to cure disease, and heal the sick, and save lives.

Atheists, on the other hand, play by the rules of “reason” and “independent thinking.” Those rules are not available at Barnes & Noble. Those rules are hard to define at any general level, requiring individual assessment (which calls for time and effort). In the minds of believers, those rules might not function as rules at all.

So perhaps it’s not as simple as wanting those we trust to be answerable to the Big Guy/Girl/People. Perhaps its really about wanting stability through constraints, even those constraints are imposed by a First Century radical Jewish sect.

-Michael

Protip: Don’t Register Your Copy of Microsoft Office Under a Ridiculous Name

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Before sending out important documents in Word format, it might pay to double check the name you used to register your copy of Microsoft Office.

This tip comes courtesy of a law student who, earlier this week, sent me an email applying for an internship position. I can only assume that he, like a lot of people when faced with a software registration prompt, typed in a ridiculous name on a whim, and then never gave it a second thought.

But unfortunately for this law student, when a Word document is viewed inside of Microsoft Office, the Author tag is fairly prominently displayed:

Poor dude. I’m guessing he doesn’t realize he’s been going around submitting a resume that claims to be written by Pretty Princess. (And I can only wonder how many times over the years I have made this exact same mistake myself…)

In case you’re wondering, you can find out how to change the author name for Word documents over here.

-Susan

The Gay Agenda on Trial: Glowacki v. Howell Public School District

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Last year, Michigan high school teacher Jay McDowell kicked a student out of his classroom, for what the teacher described as disruptive behavior. Normally, the rest of the world would never have heard of this event; kids get kicked out of classrooms for being disruptive every day, and very rarely does it make headlines. McDowell, however, kicked a kid out of his classroom after the student, Daniel Glowacki, made statements to the effect that he found gay rights offensive, and that he would not accept gay individuals.

This was immediately seized upon as evidence of the homosexual agenda in action, with opponents of McDowell touting it as proof that “gay rights” are trampling religious freedoms across the land. McDowell’s defenders, on the other hand, described his decision to remove the student as appropriate, believing that the student’s behavior was disruptive and hostile to other students. The school board initially chose to suspend McDowell for one day without pay as a result of the incident, but later reversed its decision.

The matter had died away after that. Until last Friday, when the student’s mother, represented by the Thomas More Legal Center, a “public interest law firm dedicated to the defense and promotion of the religious freedom of Christians”, filed suit against McDowell and the school district over the incident, alleging that her sons’ Constitutional rights were violated. A copy of the complaint can be found here.

The purpose of the suit isn’t the plaintiff’s material gain, but rather a chance to get a court order prohibiting public schools from restricting students’ rights to make anti-gay statements while at school. Richard Thompson, president of the Thomas More Law Center, had stated that the purpose of the litigation is to defend “religious opposition to homosexuality”:

“This case points out the outrageous way in which homosexual activists have turned our public schools into indoctrination centers,” said Thompson. He said by utilizing the tyranny of political correctness, homosexual activists “are seeking to eradicate all religious and moral opposition to their agenda.”

Despite the media coverage surrounding the case, however, the plaintiff in Glowacki v. Howell Public School District is not actually asserting any claims based directly upon freedom of religion. Rather than invoking the Free Exercise Clause, the plaintiff is instead alleging (1) that the defendants deprived students of their First Amendment rights to free speech by punishing Glowacki for expressing his refusal to accept homosexuality, and (2) that the Defendants violated the Equal Protection Clause of the Fourteenth Amendment “[b]y favoring speech that approves of and promotes homosexuality over Plaintiffs’ religious speech.” (The EPC claim is based on an infringement of Glowacki’s fundamental Free Speech rights rather than his group membership, as “people who have a religious viewpoint critical of homosexuality” is not a class that can invoke the court’s heightened scrutiny.)

The reason Glowacki’s case is a free speech case and not a free exercise case is obvious: his claims are far more compelling when brought under the rubric of free speech than they are when presented as religious freedom claims. In places, the Complaint does in fact invoke the specter of religious freedom as support of his claim for relief, but they are the weakest portions of Glowacki’s pleading. In short, Glowacki’s case, to the extent that it is based on religious freedoms, is that, as a Catholic, he has “a duty and obligation to defend [his] faith in public, including a duty to speak the truth about homosexuality” (Complaint, at para. 46) — that ‘truth’ being that “homosexual acts [are] acts of grave depravity, [and] that homosexual acts are intrinsically disordered” (Complaint, at para. 45).

But this is not a “duty and obligation” that the Constitution recognizes. There is no special Constitutional protection for a religious belief that “compels” you to affirm your disapproval of your fellow classmates every time the subject of their identity is mentioned. For instance, someone who claimed his religious beliefs compelled him to believe that Jews deserved to be exterminated would not thereby acquire a right to announce such a belief every time the subject of the Holocaust came up in class.

And so Glowacki focuses on free speech, not free exercise. But although Glowacki’s free speech claims are legitimate under the facts he has alleged, his Complaint is still pretty appalling in many respects. For instance, it describes the school district’s anti-bullying campaign as “a day in which activists exploit the tragic suicidal deaths of homosexual teenagers to promote acceptance of homosexuality in the public schools.” (Complaint, at 26). It also refers to the “pro-gay agenda” seven times, and comes off sounding rather paranoid in the process. Worse still, it repeatedly describes the suicides of kids who were bullied due to their perceived sexual orientation as “teenagers who committed suicide because they were homosexual. ” (Id., at 39). The Complaint continues to win itself no favors when it alleges that “the purpose of the ‘anti-bullying day’” is “to shift the blame for the destructive lifestyle of homosexuals to those who believe it is wrong and immoral”. In other words: gay students deserve to be harassed, and any harassment they receive due to their sexual orientation is their own fault for being gay.

But as unpalatable as the Complaint is, assuming everything it says as true, Glowacki likely does have a case. That is a pretty big assumption to start from, however; although both Glowacki and McDowell do seem to agree on some of the central facts in the dispute, the parties are diametrically opposed as to what the general tone of the exchange was, or what the intentions of the parties were. And here, the tone of the exchange is everything.

Rather than breaking new legal territory, I expect this will ultimately be a heavily fact-based case. Comparing the claims of the two sides, however, gives an indication as to where this suit is headed:

Plaintiff Glowacki’s Story:

47. On October 20, 2010, during his sixth hour economic class in which Plaintiff D.K.G. was a student, Defendant McDowell explained to the students that it was the national “anti-bullying” day and that the students were going to watch a movie about teenagers who committed suicide because they were homosexual.
48. At the beginning of the instruction and in front of the entire class, Defendant McDowell confronted a female student who was wearing a Confederate flag belt buckle. Defendant McDowell directed the student to remove the article of clothing because he considered it offensive. The female student had worn this belt and buckle to class on several prior occasions without receiving a reprimand.
49. In light of Defendant McDowell’s opening remarks to the student about “antibullying” day and tolerance, Plaintiff D.K.G. raised his hand and asked Defendant McDowell why it was permissible to display a rainbow flag, which is offensive to some people, but not a Confederate flag, which Defendant McDowell found offensive.
50. Offended by the question, Defendant McDowell curtly responded by stating that the rainbow flag represents the gay community, but the Confederate flag “represents killing people and hanging and skinning people alive,” or words to that effect.
51. Defendant McDowell then asked Plaintiff D.K.G. whether he “supported” or “accepted gays,” or words to that effect. Plaintiff D.K.G. responded by stating that his religion does not accept homosexuality and that he could not condone that behavior. Angered by the response, Defendant McDowell told Plaintiff D.K.G. that his religion was “wrong,” or words to that effect, and ordered Plaintiff D.K.G. to leave his classroom under threat of suspension.
52. After ordering Plaintiff D.K.G. to leave the classroom, Defendant McDowell asked the remainder of the class whether anyone else did not accept homosexuality. A student raised his hand, and Defendant McDowell ordered him out of the classroom as well.

Defendant McDowell’s Story:

At the beginning of my 6th hour students asked what the “Tyler’s Army” t-shirts were about. This led to the beginning of a discussion about anti-bullying. It was a discussion about not bullying anyone due to race, ethnicity, gender, sexual orientation, or social status. One female student entered the class wearing a Confederate Flag belt buckle. This student knows that I have not allowed Confederate Flags in my class. She sits in the front row. I asked her to remove the belt buckle and she did so without incident. At this point, a male student raised his hand and asked why she had to remove the belt buckle. I explained that the Confederate Flag is often seen as a symbol of discrimination. The student then said “well Gays get to fly their rainbow flag.” This was a disruption to the classroom environment. I explained the rainbow flag is not a part of the discussion and that it hasn’t been associated with lynchings, mob violence, or discrimination in the way that the Confederate Flag has been. The student then said, “I don’t accept Gays.” Obviously this was an inappropriate thing to blurt out in class and had no place in the discussion. I told him he could not say that in class that it was inappropriate. He asked, “Why? I don’t accept Gays. It is against my religion. I am Catholic.” I said that was fine it was against his religion but that that statement was inappropriate to say in class. I became concerned at this time as there were students in the class that his comment would affect in an adverse way. There were at least ten students in the class wearing purple on that day. I related the situation to discrimination against African-Americans. I explained to the class that just as you can’t say, “I don’t accept blacks” in class you can’t say “I don’t accept Gays” in class. You can have whatever religious beliefs you want but there are statements that are inappropriate to say in class. I suspended him from class that day and wrote up a referral for unacceptable behavior. Another male student walked in at that moment and said loudly, “well I don’t accept Gays either can I leave.” I said, “yes get out.” Both students were insubordinate in class and caused a disruption of the class.

The accounts do overlap, but the differences between them are determinative. Under Glowacki’s version of the facts, he wins. Under McDowell’s version, he was in the right. So whose story is true?

It is not clear one way or another, at this stage of the proceedings. However — and while I am aware that my biases are now shining through bright and clear here — I have severe doubts about Glowacki’s ability to prove his version of events. Glowacki’s story just doesn’t pass the smell test: a kid that that speaks up to defend a classmate’s prerogative to display the Confederate flag in class is not a kid that then will follow up by opposing gay rights by demurely stating that “he could not condone that behavior.” In fact, the Complaint completely dodges away from identifying the actual language used by Glowacki in the exchange, leaving the student’s own words vague and unspecified. But note that the Complaint portray McDowell’s words as if they were direct quotes — only to then hide behind the disclaimer that McDowell’s statement might actually have just been “words to that effect,” rather than the actual words used. Meanwhile, the Complaint only paraphrases Glowacki’s own statements, thereby framing him in as inoffensive a manner as possible.

Although I do think it seems likely that McDowell overreacted in dismissing Glowacki from the classroom, my bet is that Glowacki was in fact being disruptive at the time, and was not merely expressing his religious views in a respectful fashion. It was Glowacki, remember, that initiated the exchange when he, unprompted, decided to equate a gay rights symbol with the Confederate flag. As a native Georgian, I am well aware that individual perceptions of the stars and bars can and do vary, but even the most charitable part of me is very skeptical that there is an innocent justification for a kid from Michigan to be defending the right to display the Confederate flag. Moreover, Confederate flags were not a neutral symbol to this student body — a year prior, a group of students at Howell had used school computers to create a racist facebook group that used a confederate flag as its icon:

The group’s Web page displayed an image of the Confederate flag along with this message:

“If you hate a certain type of anybody black, white, pink, yellow or polka dot (you) should join. This shows you are a rebel and proud of it.”

Given this background, I’d say Glowacki’s got an uphill battle in proving that his statements were as innocent and non-disruptive as he claims.

And the precise words Glowacki used — and the tone in which he said them — matters here, a lot. For instance, several unsubstantiated reports about the incident have stated that other students in the class reported Glowacki saying “those faggots” during the course of the exchange. The reports state that these statements were made only to classmates, however. But if, for example, McDowell had actually heard a student make statements to that effect, then the case would be open and shut. McDowell would have been on firm ground in removing Glowacki from the classroom, as schools are permitted to suppress vulgar and obscene speech, which “those faggots” would very arguably fall under. See Bethel School District v. Fraser (1986).

But assuming vulgar language was not used, the most obviously applicable precedent to this case is the Supreme Court’s decision in Morse v. Frederick (2007), a.k.a. the “bong hits 4 jesus” case. In Morse, the school was found to have a compelling interest in suppressing student speech that promoted illegal drug use. In Glowacki, the school could argue instead that its compelling interest was in suppressing speech that promotes bullying — a particular pertinent interest, given the recent attention bullying and teen suicide have received in the media in the past few years.

And discouraging bullying based on sexual orientation has already been found to be not just a compelling interest for school officials, but rather an affirmative obligation. In Flores v. Morgan Hill (2003), the 9th Circuit found that school officials were liable for failing to make any attempt to prevent persistent bullying of students that were perceived by their peers to be gay — and moreover, those school officials were not entitled to qualified immunity. Glowacki’s legal arguments, if correct, would therefore put public schools between a rock and a hard place; they would be required to protect students not only from the anti-gay animus of their classmates, but would also be required to protect students’ rights to express anti-gay animus in class.

Due to the similarities in the school official’s interests in both cases, Morse would seem to be highly determinative when it comes to Glowacki’s case. Re-wording Alito’s concurrence in Morse to change the compelling interest from discouraging drug use to discouraging bullying, you get a straight-forward defense of McDowell’s actions:

[D]ue to the special features of the school environment, school officials must have greater authority to intervene before speech [that declares gays to be "unacceptable"] leads to violence [and bullying]. And, in most cases, Tinker‘s “substantial disruption” standard permits school officials to step in before actual violence erupts.

Speech advocating [the ostracizing and disapproval of gay students] poses a threat to student safety that is just as serious, if not always as immediately obvious…. I therefore conclude that the public schools may ban speech advocating [anti-gay animus, in a disruptive fashion]. But I regard such regulation as standing at the far reaches of what the First Amendment permits

This is not to say that any speech that is pro-drug or anti-gay can be suppressed under the Morse framework; a paper advocating legalization of marijuana or arguing that Catholicism does not condone non-procreative sex could not be prohibited due to safety concerns.

This is why Glowacki v. McDowell will ultimately be decided on the facts, not the law. If Glowacki was being belligerent and hostile when he declared that gay rights were offensive to him, McDowell was justified in eventually removing him from the classroom under Morse when he continued to state that “I do not accept gays.” If instead Glowacki’s expression of religious belief was made in a non-disruptive manner, and particularly if his statement was made in response to a direct question from the teacher soliciting his views, then Glowacki should prevail.

So facts are everything, here. But luckily, as this all took place in a classroom, there should at least be quite a few eye-witnesses available to testify. I hope the Thomas More Law Center is looking forward to deposing a couple dozen teenagers — I bet that will be just loads of fun.

-Susan

Posner Joke Costs Taxpayers $19

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Update:  Reuters is now reporting on Posner’s use of these pictures. Apparently he doesn’t ask for permission to use them and doesn’t pay for them.

Remember the Department of Justice’s much-criticized $16 muffin? How does that compare to a $19 joke (and not a very good one at that)? A recent opinion from Judge Posner gives us reason to ask.  The Wall Street Journal Law Blog explains:

Last week, the good folks at Above the Law and How Appealing put us on to an opinion by Judge Richard Posner of the 7th Circuit in which he compared a Houston lawyer to an ostrich.

The money quote: “The ostrich is a noble animal, but not a proper model for an appellate advocate.” To illustrate his point, Posner included an image of one of these noble animals with its head buried in the sand. Below it, he added another photo of a guy in a suit with his head buried in the sand[.]

The Law Blog shows a picture of “guy in a suit,” but I’m not going to show it here. Why? Because I don’t want to pay the royalty fees, as the suited man picture is apparently a stock photo. So that means one of two things: either Posner is a copyright pirate (unlikely) or he went out and bought the right to use the picture just to make the joke. Assuming he doesn’t have a Shutterstock membership, that means he plopped down $19 for the pic.  Interestingly, however, Posner may have thrust the picture into the public domain by using it in his opinion, as judicial opinions themselves are uncopyrightable and exist in the public domain.

Regardless, I continue to insist that Posner’s best use of a picture in an opinion is (and forever will be) this one [see footnote]. If he paid money for that one, I forgive him.

-Michael

First Thing We Do, Let’s Retrain All The Lawyers

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Newt Gingrich has an idea: implement an aggressive program of tort reform. Not exactly novel or particularly worthy of note. But Newt’s a nice guy and he’s not unreasonable. So he proposes additional step that does raise some eyebrows: he wants to retrain the lawyers that would be rendered obsolete by his reform. No word yet on what they would be retrained to do. Apparently Newt was too busy answering questions concerning whether the idea (and some of his others) were “serious proposals.”

But it’s an interesting thought experiment, isn’t it? If we were to find ourselves with a glut of unemployed lawyers (hypothetically, of course), what could we use them for? Perhaps:

  • Janitorial services: Lawyers are comfortable cleaning up the messes of others;
  • Librarians: Lawyers are at home amongst large collections of books;
  • Bloggers: Lawyers are skilled at writing rambly (often incoherent) pieces of writing read by few; or
  • Telemarketers: Lawyers love to talk.

Any other professions that could use the services of reformed attorneys?

-Michael

Unrelated note: Newt has an interest in international law! As part of his “Day One” plan, Newt emphasizes that “[e]ach sovereign nation, under international law and custom, may designate its own Capital.”  Ummm … interesting.

Should Federal Courts Do More to Protect Good People From Bad Lawyers?

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“We have no idea whether [Plaintiff] had a good claim against [Defendant]–but we do know that, if she had, [her lawyer] massacred it.”

So says Judge Easterbrook, of the U.S. Court of Appeals for the Seventh Circuit, in a decision issued last month. That decision details an unfortunate pattern of conduct by a lawyer representing a woman in an employment discrimination suit against the Navy. Among other things, the lawyer (a) treated the initial lawsuit in district court as an “appeal” when it quite obviously wasn’t; (b) argued that judgment should be granted in his client’s favor because she was too sick to participate in discovery; (c) didn’t do anything in the case for over a year, leading to its dismissal for non-prosecution; (d) filed an “ex parte” motion to vacate the dismissal of his case, arguing that a clearly constitutional rule was unconstitutional (without explaining why); (e) filed a nonsensical appellate brief; and (f) declined to file a reply on appeal or seek oral argument. The Seventh Circuit, shocked by performance that it called (among other things) “wretched,” ordered the attorney to show cause why he should not be suspended from practice or disbarred. Easterbrook reasoned that the attorney’s conduct “implies that [he] is not competent to protect the interests of litigants in federal courts.”

One would expect this kind of performance to be unusual in federal courts. Unfortunately, it isn’t. Most everyone who has worked in chambers can tell you a story about an incoherent brief or nonsensical argument made by a represented party. But despite the shoddy work federal judges often see, you don’t often hear of this kind of discipline being considered for bad lawyers, save perhaps in the Seventh Circuit (which seems to take a more aggressive approach to policing attorney misconduct).  So should there be more of these kinds of opinions? More sanctions? More disbarments?

In my opinion, the answer is a resounding yes. Notions of professional courtesy seem to lead judges away from imposing sanctions. And when judges do snap, they sometimes use colorful rhetoric and childish punishments to make their point. Maybe it’s reasonable for judges to resist imposing discipline too often, as clients are free to sue for malpractice and impose a little discipline themselves. But clients are in a weaker position and lack the money or the time to pursue such a suit (and they’re probably skittish about hiring even more lawyers). Sometimes, they don’t even realize they have grounds to sue. Judges, on the other hand, have the means to punish readily available and should have a special ability to spot incompetence. Why not let them bring the smackdown?

Lawyers, of course, would complain that judges sit in a privileged position far from the daily realities of busy litigation practice. Things fall through the cracks, mistakes get made, and cases that should be winners sometimes lose. But I’m not calling for punishment each time an attorney turns in a sub-par performance. All I’m asking is that lawyers who provide consistently inadequate legal representation be prevented from doing further harm. As servants of the public, judges should step in (as Judge Easterbrook did here) and stop amateur-hour attorneys before they have a chance to massacre another case.

-Michael

The Risk-Averse Law Clerk

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In his new book Five Chiefs, Justice John Paul Stevens offers an interesting explanation for the decline in petitions for certiorari that the Supreme Court grants (as compared to prior years).  Justice Stevens speculates that the “cert pool” pool is to blame, because “[a] recommendation to deny is less likely to produce an unfavorable reaction from any of the justices than a recommendation to grant and is therefore attractive to a risk-averse clerk.” Although I’ve never even met a Supreme Court (ok, maybe one), the explanation makes a certain amount of intuitive sense.

And that got me to thinkin’.  Judges at all levels place more reliance on their law clerks than they did in the past. At the circuit level, judges might now have three or four clerks. At the district court, judges usually have two clerks (with an extra clerk for the chief judge). Although every judge is certainly different, some judges give their clerks an extraordinary amount of latitude–sometimes even allowing a young clerk to the write his/her opinions (with appropriate supervision, of course).

If Stevens is right that some degree of risk-aversion drives the decisions of Supreme Court clerks, the same might be true of these increasingly important lower level clerks, as well. The risk-averse clerk would probably always take the path of least resistance, choosing the outcome that falls well-within the existing case law. Thus, clerks might drive the case law (at least over time) in a more conservative (“little c” conservative, that is) direction. Moreover, much like Supreme Court justices might prefer to deny a cert petition, district court judges might prefer outcomes on motions that shrink their docket faster. Thus, a clerk might lean towards granting a motion to dismiss early on in a case for fear of earning the judge’s wrath when the cases start piling up.

Of course, a good clerk will learn over time what the actual preferences of the judge really are. (For instance, a clerk for Judge Stephen Reinhardt would probably be less afraid of taking some risks because he knows his boss likes to take them, too.)  And a good judge will resist any kind of risk-aversion-based bias when supervising the clerk. But at least over time, and at the margins, it certainly is conceivable that risk aversion would have an impact.

Consequently, judges should probably be careful in responding to the recommendations of their clerks. It would likely also be helpful to make clear at the beginning of the clerkship that there are no “wrong answers.” If the clerk understands that a particular type of outcome actually bears no “risk,” he might be less likely to color his recommendations in the way that Justice Stevens suggests.

-Michael

The Stupidity of Nominal Damages

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Imagine you’re the victim of a constitutional violation; perhaps the the cops walked into your house without a warrant (or any other legal justification) and took a look around. You’d probably be pretty perturbed and perhaps you’d sue. If it’s anything like the ordinary case (at least one that doesn’t settle), you’d go through months of motions and discovery to finally get to a jury trial, invest thousands in attorneys fees and costs, and then go through a trial of a few days (or more).  And after all this, imagine the jury agreed that your rights had been violated. Huzzah! But let’s also imagine that the jury decides they can’t place a value on your violation. So what do you get? Nominal damages, usually amounting to somewhere around $1.

That outcome doesn’t seem satisfying to anyone. The defendant has just been smeared as someone who violates constitutional rights. The plaintiff has just been rebuffed–almost mockingly–by a jury who feels that the violation is unworthy of remedy. And taxpayers who want their court system to promote efficient choices won’t be happy, as months of litigation have just resulted in a fundamentally meaningless verdict.  (The Supreme Court would disagree, but the Court’s take on nominal damages seems pretty clueless.  See, e.g., Farrar v. Hobby, 506 U.S. 103, 113 (1992) (“A judgment for damages in any amount, whether compensatory or nominal, modifies the defendant’s behavior for the plaintiff’s benefit by forcing the defendant to pay an amount of money he otherwise would not pay.”)).

But perhaps there’s room for punitive damages? Maybe, but the fact you only received nominal damages is going to complicate things. Many places don’t allow punitive damages in a case involving only nominal damages.  Even if the law of a particular place allows such an award, courts often use a rough ratio of compensatory-to-punitive damages to determine when punitives go too high. If you only got a single buck, your punitive award can’t go very high. And what about attorney’s fees? There is an attorney fee provision applicable to certain civil rights cases, for instance.  But if you happen to be a prisoner, your attorney is going to have a whopping pay day of $1.50 because of a fee cap. Other fee caps may be lurking in other laws.

Nominal damages serve no real purpose and should be abandoned. Yes, they make one party (at least nominally) the “prevailing party,” which is important in some ways. But why can’t we recognize that the same thing could be done if the jury just issued a declaratory judgment that the plaintiff was harmed? Why can’t we adopt presumptive sums for constitutional violations, akin to statutory damages? Either of these approaches would avoid the nasty side effects of screwed up punitives and crazy attorney fee awards that come with our current practice. And we could finally retire the facially silly practice of awarding a single greenback once and for all.

-Michael

The Future of Law Firms: The Electronic Whip

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Former Big Law partner Stephen Harper loves to complain about law firms’ increasing tendency to focus on “metrics.”  Having enjoyed the good life by jacking up “billable hours” and “collectibles,” many big firm partners are trying to find new ways to squeeze more productivity–and thus more money–from their leveraged model.

I fear they may find their answer at Disneyland.  A recent piece in the Los Angeles Times details how Disney has begun cracking the “electronic whip” on its employees:

In the basements of the Disneyland and Paradise Pier hotels in Anaheim, big flat-screen monitors hang from the walls in rooms where uniformed crews do laundry. The monitors are like scoreboards, with employees’ work speeds compared to one another. Workers are listed by name, so their colleagues can see who is quickest at loading pillow cases, sheets and other items into a laundry machine.

…

Isabel Barrera, a Disneyland Hotel laundry worker for eight years, began calling the new system the “electronic whip” when it was installed last year. The name has stuck.

…

Employees in the Anaheim hotels are required to key in their ID when they arrive, and from then on, their production speed is displayed for all to see. For instance, the monitor might show that S. Lopez is working at an efficiency rate of 37% of expected production. The screen displays the names of several coworkers at once, with “efficiency” numbers in green for those near or above 100% of the expected pace, and red numbers for those who aren’t as fast.

…

According to Barrera, the whip has led to a sort of competition among workers, some of whom have tried to race to the head of the pack. But that has led to dissension and made other employees worry that a reasonable pace won’t be enough to keep the boss happy. Barrera and Beatriz Topete, an official with Unite Here Local 11, said employees have been known to skip bathroom breaks out of fear that their production will fall and managers will demand an explanation. They say they felt bad for a pregnant employee who had trouble keeping up.

It’s easy to see how this kind of policy could be implemented at a law firm. Associates could have an application running on their desktop that tracks their billable hours in real time. Or perhaps the program could show how much “collectible” work the associate has done over some period of time. The program could then compare all associates’ performance in a ranking system, showing associates exactly where they stand and whether they need to pick up the pace. For a group of people already prone to competition and angst, that could provide quite the motivation to work harder. Maybe they could even have their status delivered straight to their Blackberries, where the numbers are there to “encourage” them at all hours of the day.

Nevermind that such a program could generate a spirit of competition amongst associates. Or that it might drive some people to work too much, just as the board at Disneyland encourages workers to skip bathroom breaks. I still have a feeling that we’ll be seeing this kind of tool put in place at some law firm somewhere at some point down the line.

-Michael

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A radical professor has proposed a troubling new law school curriculum, one which includes a required international law course but has no apparent constitutional law requirement.

No, I’m not talking about Elena Kagan. I’m talking about Gustavus Schmidt, founder of the Louisiana Law School, now the Tulane University Law School. In 1844, this rogue proposed making international law a required centerpiece of his new institution.

Shocking. I suppose this is yet another example of crazy liberals trying to force their new-fangled “foreign law” into our U.S. courts.