Thursday, September 14, 2017

Policing and Procedural Justice in an Unjust Society

By Professor Eric Miller 

This post originally appeared on Prawsblawg, where Prof. Miller is guest blogging.

There is a sense, at least among a chunk of people, that policing in this country is broken: that the police are an authoritarian group that too often ignore the rights of minorities, especially African Americans, but also Latinos and other minority groups. The police hold these groups in contempt, and engage in unwarranted violence against minorities without being held properly to account. The popular reform proposed for this kind of police violence is "procedural justice": training the police to allow the people they encounter to given their side of the story before engaging in further action, increasing the chances that the civilian will voluntarily comply. The upside for the public is that "procedural justice" lowers the likelihood of police violence. The downside is that it is touted as real reform. But "procedural justice" is an inherently conservative response to problems with policing, and ignores—and perhaps even obfuscates—the need for real change. Worse, it potentially places the police in harms way in a manner that has longlasting moral and political (and perhaps psychological) costs for the police and the public. Here's why.

One way of seeing the problem is to realize that "procedural justice" explains the psychological impact on civilians of procedural due process. If police officers adhere to a form of procedural due process on the streets, civilians are more likely to comply with their directives. From a justice-oriented perspective, however, introducing procedural due process as a standard operating procedure for the police seems like a mealy mouthed—and long overdue—reform.

A standard critique of procedural due process is that it is insensitive to background considerations of justice. Procedural due process simply ensures that the parties get a chance of a hearing before someone who does not have a clear interest in the outcome of some dispute. But if the background equities are stacked against one of the parties, then that party has a much harder chance of success, even though the procedure used is just (in the sense of ensuring the parties get the right amount of participation). Worse, having committed to the procedure, the parties are bound by the results. The loser is disempowered from protesting her loss (except by means provided by the procedure, such as an appeal to some other authority, if such a right exists). Systems of procedurally just systems are often substantively unjust because a fair procedure in a system that is otherwise unfair cannot ensure that the parties receive their distributive or corrective due. Such inequities are often a feature of majoritarian political systems which are stacked against minorities; some form of substantive due process is often introduced as a means of mitigating against this sort of majority advantage.

Tuesday, September 12, 2017

"Procedural Justice" Is Not Procedural Justice

By Professor Eric Miller

This post originally appeared on Prawsblawg

"Procedural justice" has recently become a big deal in the politics of policing. It was a core recommendation of the President's Task Force on 21st Century Policing; and has spawned a whole literature of its own, both in North America and in the United Kingdom. The basic idea is that certain ways in which speakers interact with targets during face-to-face encounters have an important psychological effect on the target of the encounter. The target feels that the speaker is justified in making demands upon the target, so that the target under an obligation to comply with the speaker's directives. Importantly, the target feels that way whether or not the speaker is, normatively, justified in making those demands; that is, whether or not an obligation to comply exists.

While "procedural justice" may be a useful tool in inducing compliance, it is distinct from actual, normative procedural justice. Justice is a normative concept, not a psychological one. And so a way of treating a target may be normatively unjust even if it fits the psychological theory of "procedural justice." Here's why.

Thursday, August 31, 2017

Spokeo Ruling is Important for Consumers, Employees in California

By Professor Lauren Willis

This op-ed originally appeared in the August 31, 2017, edition of the Los Angeles Daily Journal.

The 9th U.S. Circuit Court of Appeals recently decided Robins v. Spokeo, DJDAR 7859 (Aug. 16, 2017), a case remanded from the U.S. Supreme Court. This decision is important for consumers.

Today, whether you will be given a job interview or apartment, or how much you will pay for a loan or car insurance, often depends on information about you that companies called “consumer reporting agencies” collect and sell to employers, landlords, banks and insurance companies. These companies must design their operations carefully, or all sorts of unfair errors can happen. A consumer reporting agency’s database might catalog a person as Julie C. Jones when she is actually Juliet C. Jones — and Julie might have a criminal record or unpaid debts when you do not.

Even "positive" information, if it is false, can be damaging. For example, if a company sells an employer a report saying that someone has an advanced degree but his level of schooling was high school, the employer might assume he is overqualified for a position when he actually would be a perfect fit. Any mismatch between a person’s job application and the information in a report about them could raise the suspicion that the applicant is dishonest, and no employer wants a dishonest employee.

Wednesday, August 16, 2017

Prof Op-ed: The Bar Has Kept Out Fine Lawyers for No Reason

By Professor Susan Smith Bakhshian
Director of Bar Programs

This op-ed originally appeared in the August 16, 2017 edition of the Los Angeles Daily Journal.

The California bar exam is broken. Both the passing score and the overall validity of the exam need attention. It has taken years to secure a simple investigation by the State Bar despite years of low pass rates among even well respected law schools. Attorneys should support the State Bar’s efforts to investigate and ultimately lower the passing score.

The State Bar’s preliminary study demonstrates that a modest reduction in the passing score would not reduce the reliability of the test. No evidence suggests California receives any benefit from the second highest passing score in the United States. Yet we keep qualified young lawyers out of practice that would pass in other states. And we need more lawyers — not fewer.

In every courthouse today, there are pro se litigants struggling to work through the legal system without the guidance of an attorney and not because they do not want a lawyer, but because they cannot afford one. There are not enough lawyers to represent the vast middle class with routine legal needs, such as a will or divorce.

Perhaps the burden on access to justice would be justified if we had evidence that a high pass score protected the public from incompetent or unethical lawyers. No such evidence exists. (Indeed, California has maintained a high pass score for decades without a corresponding reduction in attorney discipline cases. If the proponents of a high score are correct, then 48 states should have higher discipline rates than California. Instead, California’s discipline rate is rather ordinary. The higher passing score does nothing to ensure the state only licenses higher quality lawyers. It merely ensures there are fewer of them.

Restricting the admission of future lawyers does nothing to clean up any real or perceived professionalism problems with current lawyers. Discipline is extremely rare in the early years of practice and the most common offenses are not related to any subjects or skills tested on the bar exam. Even if restricting licensing would reduce professionalism issues, the moral character requirement, not the bar exam pass score, is the proper place to look for front-end solutions to a back-end problem.

A great deal has changed while the bar exam passing score has not. This July, the State Bar changed the exam to a 50 percent weight on the national Multi-State Bar Examination which is the multiple-choice portion of the bar exam. Traditionally, the MBE was 33 percent of the exam score. At first blush, this looks to be a small change, but it has large consequences. For the last several years, the MBE has declining pass rates and the National Conference of Bar Examiners, the administrator of the MBE, is not transparent in explaining the decline. Without access to the MBE’s methodology or data, California’s increased reliance on this portion of the exam is both uniformed and will likely result in even lower pass rates.

Nearly everyone agrees that better practical training for lawyers is beneficial. If California wants its licensing exam to ensure that the proper skills and training are in place, then the exam must be evaluated to be sure it validly performs that function. Instead, the exam has increased its reliance on the MBE, which emphasizes memorization and includes no California specific law. California is heading in the wrong direction by maintaining a high pass score with a heavy reliance on multiple choice questions and general national law that many California attorneys will not use in practice. This perpetuates an emphasis on test-taking skills, not practical skills.

The passing score is not limited to creating problems for a few troubled law schools. The ABA pass rate for last July’s exam was only 54 percent overall and only marginally better at 62.4 percent for first time takers. Students at these law schools would pass at rates in excess of 80 to 85 percent in many other states.

I have no personal ax to grind. I took and passed the California bar exam the first time. But in my over two decades as a law professor, the California bar exam pass score has kept out or delayed many fine new lawyers for no reason. It is time to fix that.

Friday, August 11, 2017

Prof. Zimmerman Urges Veterans Court to Use Class Actions Before Adopting Formal Rule

By Professor Adam Zimmerman
Gerald Rosen Fellow

I was among those who filed an amicus brief--on behalf of the nation's leading scholars in administrative law, federal courts and civil procedure--in Veteran's Court today arguing how it may conduct class actions.

By way of background, in April, the Federal Circuit issued a pathbreaking decision holding that veterans could bring class actions in veterans courts, reversing over 30 years of precedent. Before that, veterans groups lacked meaningful ways to challenge systemic problems at the VA. Relying, in part, on our earlier amicus brief and our research in Inside the Agency Class Action, 126 Yale L.J. 1634 (2017), the Federal Circuit concluded that the nation's veterans courts indeed had power to hear class actions to improve efficiency, consistency and fairness in their own proceedings.

As a result, the veterans court has now begun to consider adopting formal rules to aggregate cases, including class actions. At the same time, veterans groups have already started filing class actions. So, the Veterans Court invited amici, including us, to weigh in on whether it can hear class actions before it adopts a formal rule to do so. Because formal rules often take several years to complete, how the veterans court proceeds now could have a dramatic impact on the speed in which it is able to provide justice for thousands of the nation's veterans.

Our brief, written with the Yale Law School Veterans Legal Services Clinic, surveys a range of different courts--federal courts, legislative courts and administrative tribunals--to show how they have experimented with class actions. In so doing, we show how many different courts gained invaluable experience, and swiftly resolved large numbers of pending cases, by adopting aggregate procedures, on a case by case basis, before adopting a formal rule to do so.

Tuesday, August 8, 2017

Prof. Miller Presents to Chief Judges on Problem-Solving Courts

By Professor Eric Miller

Professor Miller presented a paper on problem-solving courts to the U.S. Court of Appeals for the Eighth Circuit chief judges on Thursday, August 3, 2017 as part of a panel on specialty courts. Below is an excerpt from the presentation.

The first problem-solving court was founded by Chief Judge Klein of the Florida State Eleventh Judicial Circuit as an alternative to other, "fast-track" drug courts. The single great advantage of offender-supervision courts is that they respond to a failure in the federal sentencing guidelines that recent reforms do nothing to remedy. The guidelines presuppose incarceration as the organizing principle of punishment to the exclusion of non-incarcerative sanctions. The guidelines focused the question of punishment on the moment of sentencing as applied to individual offenders. But the guidelines failed to consider the direct and collateral consequences of imprisonment and reentry for both the offender and his or, increasingly, her family and community. The guidelines effectively channeled individuals into and up the criminal justice system, with little thought about what happens to them in prison, where they become less healthy, less employable, and more antisocial through losing family contacts, and what happens after prison, where often prisoners lose a variety of state and federal benefits as a collateral consequence of imprisonment.

Thursday, August 3, 2017

Trump Can’t Fire Transgender Troops

Professor Maureen Johnson
By Professor Maureen Johnson

This op-ed originally appeared in the Los Angeles Daily Journal

Just over two weeks ago, the House of Representatives — with bipartisan support — rejected an amendment to a defense spending bill that would have denied medical coverage for gender transition costs for members of the U.S. military. More particularly, 24 Republican representatives joined with Democrats to shut down the amendment. Notably, CNN reported that Defense Secretary James Mattis privately lobbied against the amendment through direct conversations with the bill’s author, Missouri Rep. Vicky Hartzler, as well as with other Republican representatives.

President Donald Trump’s response? There’s more than one way to skin a cat: If you can’t eliminate medical coverage for transgender-related services, simply eliminate transgender service members from the military.

Last Wednesday, Trump tweeted that he will prohibit transgender people from serving in “any capacity” in our military. To be clear, a series of three tweets in the early morning hours of July 26 proclaimed that the United States military would not “accept or allow” transgender people to serve, presumably meaning that even those transgender members currently serving — which early estimates suggested may be as many as 15,000 — will be summarily discharged, without any regard or respect for their valor or the contributions they already have made to our country.