Finding a Bright Line on Expression in Masterpiece Cake Case

Loyola Law School, Los Angeles Professor Kimberly West-Faulcon is following the U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case stems from baker Jack Phillips’ refusal to make a wedding cake for a safe-sex couple, which challenged the refusal based on the Colorado Anti-Discrimination Act.

Professor West-Faulcon, Loyola’s James P. Bradley Chair in Constitutional Law, observes:

This is a case that tries to pit our constitutional right to be free from government censorship of our expression against civil rights protections for same-sex couples. I think finding a sensible place to draw the line on what constitutes artistic expression would mean people who run store-front bakeries must serve all of their products to all of the public because a bakeshop is a public accommodation. If you are more “artist” than baker, I’d think the Court would expect you to have a private studio with more exclusivity than a place where the general public goes to buy cookies.

Contempt at the Military Commissions: A Legal History

By: Professor David Glazier

This piece originally appeared on Lawfare

Does a military commission judge have the power to cite a senior U.S. military officer for contempt as if these tribunals were courts-martial or regular federal courts?

This question came to the fore last week when Guantanamo experienced its most bizarre detention to date. On Nov. 1, Col. Vance Spath held in contempt the military commissions’ chief defense counsel, Marine Corps Brig. Gen. John Baker in the trial of Abd al Rahim al Nashiri. (Al Nashiri is accused of planning the 2000 bombing of the USS Cole.) Although it might be widely assumed that the Guantanamo tribunals should enjoy similar core authority to that inherent in other U.S. courts—including the power to punish for contempt—the reality is that their authority is limited by their governing statute, the Military Commissions Act of 2009 (MCA).

Spath summarily convicted Baker for contempt of court for refusing to testify before the commission or revoke his unilateral excusal of three civilian counsel assigned to represent al Nashiri due to purported ethical conflicts. Spath imposed on Baker twenty-one days confinement and a $1,000 fine. Although Baker’s actions might be punishable by a judge in a regular civilian court, or even a court-martial conducted under the recently amended Uniform Code of Military Justice (UCMJ), they fall outside the scope of contempt as Congress defined it in the MCA.

2017 Tax Reform: We Hate Employees

By Professor Theodore Seto

This post originally appeared on Understanding Tax

Current tax law is moderately unfriendly to employees, more friendly to folks who can structure their businesses as sole proprietorship or partnerships. Sole proprietor expenses are deductible above-the-line, reduce adjusted gross income, and are deductible for AMT purposes. Employee expenses are only deductible below-the-line, are subject to the 2-percent floor and the overall limitation on itemized deductions, and are not deductible at all for AMT purposes.

Under the House Republican bill, things are about to get much worse.

Loyola Project for the Innocent Ushers in Rule on Prosecutorial Ethics

Loyola Project for the Innocent smooths way for passage of Rule 5-110 by the California Supreme Court. The rule, Special Responsibilities of a Prosecutor, defines their obligations to the defense.  "This will have a lasting imprint on the entire profession, and we played a leadership role in it," said Professor Laurie Levenson, LPI founder.

Read Rule 5-110 in full below.

Federal Circuit Adopts Professors' Theories on Veterans' Courts Hearing Class Actions

Update: Following the Federal Circuit's path-breaking decision permitting veterans to bring class actions in April, an en banc panel of the Veteran's Court has just set down a schedule for briefing and oral argument to consider certifying a class action in that case. 

Relying, in part, on an amicus brief filed by Professor Adam Zimmerman and others, the Federal Circuit this week agreed that veterans can bring class actions in veterans court in the case Monk v. Shulkin.

"By adopting our theory that this veteran's court could hear class actions under its statute, the Federal Circuit not only creates a meaningful path for veterans to pursue desperately needed institutional reform, but it has essentially paved the way for almost all other agencies with similarly worded authority to do the same," said Zimmerman.

The Wall Street Journal reported: "Adam Zimmerman, a class-action expert at Loyola Law School who filed an amicus brief in the case along with other academics, said the Federal Circuit ruling has the power to help more than the veterans. It also could pave the way for other agencies granted similar authority to the veterans court to hear collective actions, he said.

Relevant excerpt of opinion:

Under 38 U.S.C. § 7264(a), “[t]he proceedings of the [Veterans Court] shall be conducted in accordance with such rules of practice and procedure as the Court prescribes.” This express grant authorizes the Veterans Court to create the procedures it needs to exercise its jurisdiction.

Other tribunals have relied on statutes with similar language as 38 U.S.C. § 7264 to aggregate claims and create class action procedures, including the Equal Employment Opportunity Commission (“EEOC”). See Amicus Br. of 15 Admin. Law, Civil Procedure, and Fed. Courts Professors at 10–11 (noting that the EEOC was granted authority to “issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities” pursuant to 42 U.S.C. § 2000e-16(b)). Under this authority, the EEOC adopted a class action resolution procedure. 29 C.F.R. § 1614.204; see, e.g., 57 Fed. Reg. 12,634 (Apr. 10, 1992); Wade v. Donahoe, No. CIV.A. 11-3795, 2012 WL 3844380, at *13 (E.D. Pa. Sept. 4, 2012) (“Pursuant to [its 42 U.S.C. § 2000e-16(b)] authority, the EEOC has promulgated regulations for class actions.”).

On the basis of the express statutory authority of the Veterans Court to prescribe “rules of practice and procedure,” the Veterans Court may prescribe procedures for class actions or other methods of aggregation.

Company that Owns Muhammad Ali sues Fox over Tribute to Late Boxer

By Professor Jennifer E. Rothman

This post originally appeared on Rothman's Roadmap to the Right of Publicity.

The company that owns and manages former boxing great Muhammad Ali's right of publicity and trademarks has sued Fox Broadcasting in federal district court in Illinois. The complaint filed today claims that Fox's broadcast of a memorial to Muhammad Ali leading up to the broadcast of the 2017 Super Bowl violated Ali's right of publicity under Illinois law and the federal Lanham Act. The Lanham Act claim is that the broadcast falsely suggested that Muhammad Ali Enterprises (the plaintiff company) endorsed the short film.

The edited spot runs approximately 3 minutes in length and uses newsreel and sports footage of Ali, combined with footage of football greats, like Joe Montana and Tom Brady, to celebrate the spirit of legendary athletes and to honor the deceased Ali. Although some journalists have characterized the short as an advertisement, and one could see it as promoting the feel-good-spirit of the Super Bowl and Fox's upcoming broadcast, it is clearly styled as a tribute to Muhammad Ali who had died the year before. As such, I think there are strong arguments that it is not an advertisement and is not commercial speech. It therefore should receive full First Amendment protection.

Muhammad Ali Enterprises, now reportedly owned by Authentic Brands, was no doubt emboldened by Michael Jordan's victory against two supermarkets that used his name and jersey number in an issue of Sports Illustrated to celebrate his induction into the Basketball Hall of Fame. Jordan won more than $9 million in those cases. But those cases are quite different than this one. There was little dispute that the use of Jordan's name promoted the markets, and one of the one-page spreads included a coupon for a steak underneath the message about Jordan. It is not clear that this longer form celebration of Ali and athletics is so clearly directed at selling a product or show. (I also note, as I have written elsewhere, that greater latitude should have been given to the supermarkets to simply congratulate Jordan, though perhaps not to sell steaks with his name above them.)

Major Victory for Fantasy Sports against College Athletes

By Professor Jennifer E. Rothman

This post originally appeared on Rothman's Roadmap to the Right of Publicity.

Last week while a California trial court let the right of publicity run roughshod over the First Amendment in a case involving a docudrama, an Indiana district court in Daniels v. Fanduel rejected the right of publicity claims brought by former NCAA football players, Akeem Daniels, Cameron Stingily, and Nicolas Stoner against fantasy sports leagues run by FanDuel and DraftKings.

The former student-athletes complained about both websites using their names, statistics and likenesses to operate and promote the fantasy sports games. The players claimed the uses violated Indiana’s right of publicity law. The defendants asserted a number of defenses, including that the uses fell under Indiana’s statutory exemptions, were allowed by (and protected by) the First Amendment, and were barred by federal copyright law.

There was no challenge to the fact that the use of the players’ identities was for a commercial purpose as required by Indiana law. The websites are pay sites and the court noted that in 2015 the fantasy sports industry generated $3 billion in “customer entry fees.”

The Plot (and Feud) Thickens

By Professor Jennifer E. Rothman

This post originally appeared on Rothman's Roadmap to the Right of Publicity.

On Friday, a California superior court agreed with two-time Oscar winner Olivia de Havilland that her lawsuit against FX Networks could proceed. FX had sought to put a swift end to her lawsuit arising out of her portrayal in the network’s critically acclaimed miniseries, Feud. The series chronicled the longstanding conflict between Joan Crawford and Bette Davis. My prior post on the lawsuit discusses in more detail the miniseries and de Havilland's claims, but since that post de Havilland wisely amended her complaint to include false light and defamation claims.

FX had sought to have de Havilland’s Second Amended Complaint tossed using California’s anti-SLAPP law (Strategic Lawsuit Against Public Participation), which allows for the early dismissal of lawsuits that limit free speech. But when courts determine that there is a likelihood of success―at least if a plaintiff’s version of the facts is true―courts often let the cases proceed. This is what happened here.

No written order with legal conclusions has been released yet, but the court issued an order denying FX’s motion to strike de Havilland’s complaint. According to reports from the courtroom, California superior court judge Holly Kendig thought that de Havilland had met her burden of showing a likelihood of success on her defamation, false light, and right of publicity claims.

De Havilland’s defamation and false light claims merit some discovery, even though they will likely fail. Showing that FX and the creators of the show demonstrated actual malice toward de Havilland will be an uphill battle. Unless they knew that the portrayal was false or had reason to know that it was, her claims cannot stand. The defamation claim also is weak because her portrayal was not one that would negatively reflect on her. The false light claim may have more staying power because it has no such requirement. Still a false light claim must overcome the actual malice hurdle. Determining whether de Havilland was defamed or falsely portrayed, and whether this was done with actual malice will require fact-finding, and therefore the judge legitimately allowed those claims to proceed―even if FX will likely prevail on them.

Selection Bias: The Character of Policing on the Street

By Professor Eric Miller 

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

Criminal procedure scholars tend to think of policing in terms of the way the Constitution permits or restricts certain police practices; and more narrowly, in terms of what rights may be asserted by criminal suspects against the police. But most of what counts as policing is low visibility: out of sight of the courts that could enforce these constitutional regulations. Of much more importance to policing are the laws and policy decisions about who gets to be a police officer, and what training they receive. The selection and training issue has become especially pressing with he “rise of the warrior cop,” and the ways in which the discussion of policing selection and police training has been insulated from public and political scrutiny.

The core case on police selection is Washington v. Davis, which is often thought of as a Title VII and civil rights case. Davis was, however, a police selection case seeking to diversify the police force of Washington, D.C. And hidden behind Davis is a story of who gets to control the standards used to train the D.C. Metropolitan Police Department. By 1976, African American police officers were making strides in admittance to the department; by 1978, the Chief of Police was African American, as were the majority of the officers. Nonetheless, just two years earlier, Davis had argued that the police test was having a discriminatory impact; the Court sided with the police in requiring a showing of discriminatory intent.

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.

"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.

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.

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.

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.

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.

Trump Can’t Fire Transgender Troops

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.

Civil Suit Against the Trump Campaign Just Might Succeed

By Professor John T. Nockleby

This op-ed originally appeared in the San Francisco Chronicle.

Three American voters have filed a civil lawsuit against the Trump campaign and onetime campaign adviser Roger Stone that has the potential to transform the investigations of Trump’s connections to Russian hackers during the 2016 presidential election. This lawsuit might succeed where others have not in exposing the Trump campaign’s alleged involvement in disseminating the emails stolen from the servers of the Democratic National Committee.

The lawsuit alleges what amounts to a quid pro quo agreement between the Trump campaign and the Russian government to secure Trump’s election in exchange for upending U.S. policy toward Russia.

While the U.S. Department of Justice and Congress are also investigating Russia’s interference in our election and potential Trump campaign or associate involvement, there are a number of critical differences between the FBI’s criminal investigation and the conspiracy lawsuit.

First, because it is a civil conspiracy as opposed to a criminal case, there will be a lower standard of proof to show agreement between the Russians and the Trump team. The plaintiffs would generally try to show this agreement through circumstantial evidence.

Read the complete op-ed.

Trump Can Make 'Buy American' More Than A Slogan. Just Enforce A 1980 Law

By Professor Justin Hughes
Hon. William Matthew Byrne, Jr. Chair

This op-ed originally appeared in the July 3, 2017 edition of USA Today. 

China is not manipulating its currency to our detriment, and NAFTA is a good thing for the U.S. economy. But Donald Trump has been right in his basic observation — as both candidate and president — that we need to do more to address our country’s trade deficit, how other countries "game" international trade, and how American jobs move offshore. Trump may not realize it but he could advance his “Buy American and Hire American” goals by activating a policy tool already buried in U.S. patent law.

Year in and year out, the federal government has spent tens of billions of dollars supporting scientific and technological research —­ for example, more than $131 billion in 2015 alone. Before 1980, federal agencies had different policies on inventions resulting from this federally funded research, with most of them reserving any patent rights to the federal government. That meant there was a vast trove of inventions collecting dust in government files: As of 1980, there were 28,000 patents held by the government this way — and fewer than 4% had been licensed for commercial use. While many of those were patents on military technology — and shouldn’t be licensed — there was clearly underutilization of a vast technological portfolio.

Read the full op-ed here >>

On Independence Day, Professor Sees Hope in Constitution

By Professor Gary C. Williams
Johnnie L. Cochran, Jr. Chair in Civil Rights

As Independence Day approaches I am apprehensive. Terms such as “Muslim ban” and “fake news” are bandied about with impunity. The concepts of “extreme vetting” and building a wall alarm me. At the same time I am grateful. Three essential building blocks in the foundation of this nation - freedom of the press, the right to petition the government for redress of grievances, and the right of free speech - are at the forefront as we confront today’s challenges.

The press has been courageous in fulfilling its role under the first block. It has reported truthfully the actions of politicians of all stripes. It is reporting on, and investigating, Russian interference with our elections. And despite presidential claims that the press is “the enemy of the people,”[1] it has persisted in reporting on the actions and misrepresentations of our government and its leaders.

Our profession has seen some of its finest moments helping the defenseless utilize the second building block – the right to petition the courts for redress of grievances. Lawyers volunteered to represent people caught in the dragnet cast by the “Muslim ban.” Lawyers toiled from dawn to midnight crafting briefs challenging the worst aspects of that ban. And our courts have, thus far, remained steadfast in enforcing the principles of equal protection and freedom of religion - holding that a ban based upon religious affiliation violates the basic tenets of the Bill of Rights.

Dr. Martin Luther King once declared: “Every person of humane convictions must decide on the protest that best suits his [and her] convictions, but we must all protest.”[2] The ability to protest is protected by the third building block, the right of free speech. Americans have exercised that right by showing up at airports to protest the “Muslim ban.” And Americans poured out in unprecedented numbers to protest the political acceptance of sexist language and behavior.[3]

Our nation is not perfect. The Constitution that contains those building blocks at one time condoned slavery and denied women the right to vote. During World War II it allowed American citizens of Japanese descent to be imprisoned solely because of their race. But those building blocks made it possible to correct those errors. Today I see hope for our future.

[1] Trump Embraces ‘Enemy of the People,’ a Phrase With a Fraught History, New York Times, ANDREW HIGGINS, February 26, 2017
[2] Dr. Martin Luther King, 1967
[3] More than 500,000 in Washington D.C., and 400,00 in New York city alone. Women’s March Highlights as Huge Crowds Protest Trump: ‘We’re Not Going Away,’ ANEMONA HARTOCOLLIS and YAMICHE ALCINDOR, New York Times, January 21, 2017

Loyola Professors Commenting on SCOTUS News

Loyola Law School, Los Angeles professors are commenting on the news arising out of the U.S. Supreme Court today:

GRANT OF CERT

Gill v. Whitford (Wisconsin gerrymandering case)

• Professor Jessica Levinson: Levinson teaches Money, Politics & the Supreme Court and serves as president of the Los Angeles Ethics Commission. 
• Professor Justin Levitt: Levitt is a national renowned scholar on redistricting who runs the website, All About Redistricting. 

OPINIONS

Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County (civil procedure/personal jurisdiction)

• Professor Adam Zimmerman: “In terms of impact, I think this case is kind of the sleeper case of the term,” says the complex litigation expert and Gerald Rosen Fellow. “It's going to impact thousands of cases in state MDLs, class actions and, I think, federal MDL litigation (which comprises nearly 40% of all cases in our federal courts.)” Zimmerman’s immediate reaction to the opinion is available online via @Adam_Zimmerman. 
• Professors Allan Ides & Simona Grossi: The civil procedure experts filed an amicus brief in the case (below). 

Matal v. Tam (The Slants case; disparagement clause in trademark approval/First Amendment)

• Professor Justin Levitt: This case decides that the Federal Trademark Office can't refuse to register a trademark that may ‘disparage’ or ‘bring ... into contemp[t] or disrepute’ individuals or groups,” writes the constitutional law expert. “The case follows a line of recent cases looking very skeptically at government laws or policies that burden speech -- and an even longer line of recent cases looking even more skeptically at government laws or policies that treat some private speech worse than others based on its content or viewpoint. The Court divided 4-4 on the precise legal framework, but all 8 Justices hearing the case (Justice Gorsuch wasn't yet on the Court when this was heard) agreed that the statute prohibiting registration of disparaging marks was out of bounds, and that the question wasn't particularly close. This impacts not only The Slants (which will be able to get their name trademarked), but also some other prominent and very controversial brands, like the Washington Redskins, whose trademark had been canceled as ‘disparaging’ in June 2014.” 
• Professor Jennifer Rothman: “The decision is no surprise. The 8-0 decision -- that Gorsuch did not participate in -- holds that the bar to registering trademarks that are deemed ‘disparaging’ or offensive is struck down. This means that The Slants can register their mark for their band, even if some view it as disparaging or insulting to Asian people, and it also means that the Washington Redskins marks which were cancelled for the same reason will be reinstated. The decision also likely eliminates the bar on registering marks that are scandalous or immoral."

Some Thoughts on Microsoft v. Baker

By Professor Adam Zimmerman

The big story in Microsoft v. Baker -- the Supreme Court's latest decision involving class actions -- is the question it did not reach today: Do lead plaintiffs have standing to continue pursuing a class action after their individual claims go away?

By way of background, there were two issues in Microsoft v. Baker. The one most people are familiar with is a highly technical question. Whether the plaintiff's strategy in the case--which was to voluntarily dismiss the case with prejudice in order to appeal the denial of class certification--is an impermissible end-run around Rule 23(f)? Rule 23(f) was created nearly two decades ago to permit appellate courts to review whether or not a district court properly certified a class action. Because the decision to certify a class action -- or not -- was so momentous, before Rule 23(f), a grant often would result in a quick settlement, while a denial would often spell the "death knell" of the case. The class action rules were amended in 1998 to give the appellate courts power to hear class action cases in their discretion, even though the appellate courts usually won't hear a case until after the lower court issues a final judgment. Microsoft involved what the Court felt was an improper workaround that process. Rather than rely on 23(f), plaintiffs could voluntary dismiss their claims, receive a final judgment and then appeal the denial of class certification.

New York Once Again Floats Right of Publicity Law

By Professor Jennifer E. Rothman

The New York Assembly introduced yet another right of publicity bill last week, Assembly Bill A08155. Such legislation is introduced almost every year in New York―focused on trying to add a post-mortem right which currently does not exist under New York law. Thus far, these bills have all failed to proceed. This time may be different.

The stars are aligning for passage of some bill―even if it hopefully is not this one. One reason for this is that the media companies, that usually strongly oppose such bills, are more willing to compromise this year if the bill provides them with an explicit exemption to avoid liability, particularly in the context of expressive works and news. This sea-change has been brought by a decision earlier this Spring in which a New York appellate court, in Porco v. Lifetime Entertainment, allowed a right of privacy claim to proceed against a television network for its fictionalized drama about a real-life murder. The plaintiff was convicted of having committed the murder, but objected under New York’s privacy statute to the airing of the 2013 Lifetime movie, "Romeo Killer: The Christopher Porco Story."

The proposed bill does provide exemptions that should make media companies happy―including an exemption that would protect Lifetime from Porco’s lawsuit. But in the process a lot of other changes to New York’s laws on privacy are included, and very few of them are wise.\

Read the entire post on Rothman's Right of Publicity>>

Intellectual Property – Ethiopia’s Experience (continued)

Professor Justin Hughes recently completed a State Department trip to Ethiopia to conduct talks on intellectual property. The U.S. embassy in Addis Ababa's official blog is publishing a series of his posts on the topic. The first was published on June 1, 2017.

In my last blog post, I focused on Ethiopia’s coffee industry; now let’s talk more broadly about Ethiopian’s intellectual property (IP) laws and how those laws potentially impacts the country’s growth.

Ethiopia is almost unique among African countries for its lack of participation in the multilateral treaties that govern the international IP system. There are two main multilateral conventions for IP: the Paris Convention (for patents and trademarks) and the Berne Convention (for copyright law). Today, those treaties have 195 and 183 members, respectively. Ethiopia is the largest economy not participating in the Paris Convention and perhaps the second largest economy not participating in the Berne Convention (after Iran).

Read the complete blog post

Intellectual Property – Ethiopia’s Experience

Professor Justin Hughes recently completed a State Department trip to Ethiopia to conduct talks on intellectual property. The U.S. embassy in Addis Ababa's official blog is publishing a series of his posts on the topic. The first was published on May 19. 

It’s been a pleasure to come to Ethiopia as part of the U.S. State Department’s public speaker series; the State Department invited me here to talk about intellectual property (IP) laws as well as international trade, the two subjects I teach at Loyola Law School at Loyola Marymount University in Los Angeles. During my trip, I’ve spoken before audiences from Addis Ababa and Hawassa universities; conducted a 1.5 day workshop for the Ethiopian Intellectual Property Office (EIPO), and had many smaller meetings and site visits, including the Ethiopian Agricultural Research Institute in Addis, the Oromia Coffee Farmers’ Cooperative Union in Oromia, and rural health centers and health posts in Amhara.

Read the complete blog post>>

Louisiana Right of Publicity Moves Forward

By Professor Jennifer Rothman

This blog post originally appeared on Rothman's Roadmap to the Right of Publicity.

The proposed “Allen Toussaint Legacy Act” has passed another hurdle in the Louisiana legislature. The bill passed the House last week and was sent to the Senate Judiciary Committee yesterday. The Act is named after the famed New Orleans musician, songwriter and producer, who died in 2015. The proposed law provides individuals with a “property right in the commercial use” of their names, voices, signatures, photographs, and likenesses.

The law problematically provides that this property right is “freely transferable, assignable, licensable, and heritable.” As I have warned elsewhere, such laws provide an avenue for individuals to lose control over their own identities forever if they assign their property right to third-parties like record labels or movie producers, or sports leagues. In addition, estate taxes on such fully transferable property may force heirs to commercialize the identities of the deceased even if that violates the wishes of the deceased and his heirs.

Professor Caplan Pens ACLU Amicus Brief

Professor Aaron Caplan was the primary author of an amicus brief submitted to the California Court of Appeal in Geoffrey C. Keyes v. Jan Brio. The case interprets the California civil harassment statute, a topic on which Caplan has a leading law review article. In the brief, Caplan focuses on whether the speech in question is “directed at a specific person” or is merely about that person.

[Excerpt]

The First Amendment broadly protects a speaker’s right to communicate with listeners about topics of the speaker’s choice—even when the topic is another person. Restricting such communication just because its content distresses the person spoken about constitutes a forbidden prior restraint on constitutionally protected speech.

Read the full brief below:

With Kindred, Supreme Court Signals It Will Stand By Arbitration Contracts that Limit Private Parties' Recourse in State Courts

By Professor Adam Zimmerman

This week, the Supreme Court rejected a Kentucky rule that prevented people from entering into arbitration with general power of attorney agreements. The Kentucky Supreme Court last year found that such agreements violated its constitutional guarantee to court access and held people only could only assign and waive those rights when a power of attorney contract expressly said so. The US Supreme Court found that the state rule unlawfully "single[d] out" arbitration agreements for "disfavored treatment" and violated the Federal Arbitration Act, which prevents states from discriminating against arbitration agreements.

In some ways, the impact of this decision is narrow. The Court emphasized that states could still prevent people from entering into contracts to arbitrate under "generally applicable contract defenses," like fraud. They just cannot adopt rules that only apply to arbitration. The Court took pains to emphasize that this Kentucky rule was unique because it specifically singled out arbitration as something that had to be expressly provided for, but not other forms of alternative dispute resolution, like settlement discussions or mediation. Said the Court in a footnote, "[m]ark that as yet another indication that the court’s demand for specificity in powers of attorney arises from the suspect status of arbitration rather than the sacred status of jury trials."

Loyola Immigrant Justice Clinic Co-Director Testifies before State Assembly Committee

On Tuesday, April 18, 2017, Loyola Immigrant Justice Clinic Co-Director Marissa Montes '12 testified before a California State Assembly committee about the use of gang databases in the state.

Good Morning. My name is Marissa Montes and I am the Co-Director of Loyola Law School’s Immigrant Justice Clinic, which provides free immigration legal services to the community of Boyle Heights and East Los Angeles. Through our work, we have integrated ourselves into the community, and have witnessed firsthand how over-policing, and the mislabeling of gang membership can severely impact an individual’s ability to gain legal immigration status.

For this reason, I am here to testify in support of AB 90, which would address the accuracy and fairness of CalGang and other shared gang databases. This bill not only addresses the concerns highlighted in the California State Auditor’s findings, but would also add safeguards to limit the misuse of information that unfairly targets immigrant and low income communities.

First, AB 90 would place a moratorium on the use of Calgang until the state audit concerns are addressed. The audit found that children younger than one year of age were entered and labeled as gang members, demonstrating either that individuals were being categorized by law enforcement based on family and community ties, or that the data entered was horribly inaccurate. This misinformation proves to be detrimental, as it was for our client, Mathias, a stellar community college student, who in the course of his green card interview was accused of gang involvement due to his older brother. Mathias, who only had one misdemeanor conviction for a non-gang related offense, had never been involved or gang affiliated. US Citizenship and Immigration Services had no access to any evidence regarding gang affiliation, except for inaccurate information collected through CalGang. Mathias’ case remains ongoing, but is an example of one of many young adults in his community who are similarly stigmatized as gang-affiliated.

Pitches Procedures Are Too Restrictive to Meet Brady Rule

By Professor Sean Kennedy
Kaplan & Feldman executive director of the Center for Juvenile Law and Policy

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

There is an ongoing court battle between Los Angeles County Sheriff Jim McDonnell and the Association of Los Angeles Deputy Sheriffs (ALADS), the union that represents line officers, about what to do with findings of misconduct in a police personnel file. The case, which will significantly impact criminal justice in Los Angeles, is set for argument before the California Court of Appeal on May 1.

The dispute relates to how to implement the landmark 1963 case Brady v. Maryland, in which the U. S. Supreme Court held that prosecutors violate due process if they fail to disclose exculpatory evidence to the defense. “Exculpatory” includes information that impeaches the credibility of prosecution witnesses, including witnesses who are sworn law enforcement officers. Later, the court in Kyles v. Whitley held that because the police are part of the “prosecution team,” police suppression of exculpatory evidence also violates Brady, even if the prosecutor was unaware of the evidence.

Sheriff McDonnell compiled a list of 300 deputy sheriffs whose personnel files reflect discipline for serious misconduct, such as accepting bribes, tampering with evidence, lying, falsifying records or obstructing an investigation. He tried to give this “Brady list” to District Attorney Jackie Lacey so that prosecutors who relied on the disciplined officers to make their cases would be aware of the impeachment evidence and disclose the names of the officers to the defense.

Gorsuch Should Look Forward, Not Behind

By Professor Allan Ides

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

Judge Neil Gorsuch, President Donald J. Trump’s nominee to the U.S. Supreme Court, has described his method of constitutional interpretation as one in which he tries “to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.” As such, Gorsuch’s constitutional philosophy is akin to the originalism endorsed by Justices Antonin Scalia and Clarence Thomas. It pegs our future on the past and it draws a bright line between those judges who adhere to the law — originalists — and those who impose their will on it — presumably everyone else.

On its surface, original understanding may seem to offer an attractive and principled approach to judicial interpretation of the Constitution. Under that approach, the judge operates as a neutral umpire who enforces the values established in 1789 or those found in subsequent constitutional amendments. It offers the hope of constitutional stability and leaves to democracy the responsibility of adjusting the Constitution to modern realities. But this vision is belied by the reality of how judges and justices actually interpret the law and resolve disputes. It is also premised on a highly unrealistic impression of how the American democracy works.

Virtually all judges are originalists when it comes to an unambiguous constitutional text. No sensible judge would struggle with the meaning of Article II’s requirement that limits the presidential office to a person who has “attained to the age of 35 years.” But most of the contested provisions of the Constitution are stated in open-textured, sweeping terms. Some obvious examples include “the free exercise” of religion, “the freedom of speech, or of the press,” and the guarantees of “due process.” Those phrases may sound relatively definite, but they aren’t. Even originalists disagree among themselves over their respective meanings. Other open-textured phrases define the powers of Congress, the presidency, and the judiciary; and still others limit the powers of the states with broadly worded terms such as “privileges or immunities” and “equal protection of the laws.” The question is whether originalism can provide a sustainable and sensible path to the correct understanding of such contestable provisions. I have my doubts.

Religious Organizations, Refuge for Undocumented Immigrants, and Tax Exemption

By Professor Ellen P. Aprill

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

For many houses of worship, the Biblical injunction, “You should not wrong a stranger or oppress him, for you were strangers in the land of Egypt” (Exodus 22:21, JPS), constitutes an important religious doctrine. The Trump administration has announced plans for aggressive enforcement of immigration laws, plans that are expected to expand massively the number of people detained and deported. This new policy has forced many houses of worship and other religious organizations to consider whether their beliefs call upon them to grant refuge or so-called sanctuary to undocumented immigrants.

Under long-standing immigration laws, harboring undocumented immigrants carries the potential for both fines and imprisonment. An organization can lose its exempt status if its purpose is illegal. Moreover, illegal activity is deemed not to further an exempt purpose, and an organization can also lose its exempt status if a substantial part of its activities are not in furtherance of its exempt purpose. Houses of worship and religious organizations face some risk, at least in theory, of losing exemption for such activity. As a practical matter, loss of exemption is unlikely, but the organization needs to document the religious basis for its actions and the criteria it will use.

One piece of official IRS guidance offers important guidance. It involved an organization formed to educate the public on the principles of pacifism and nonviolent action, including civil disobedience. This 1975 “Revenue Ruling” explains that no Section 501(c)(3) organization can have an illegal purpose. The ruling’s analysis, however, emphasized the group’s primary activities of undertaking protest demonstrations and other nonviolent actions, including deliberately blocking traffic, disrupting the work of government, and preventing the movement of supplies, all breaches of the peace in violation of local ordinances. The ruling concluded that the organization’s activities “demonstrate an illegal purpose which is inconsistent with charitable ends.” The Tax Court in Church of Scientology of California v. Commissioner similarly concluded that pervasive illegal activities, including a number of felony convictions, constituted an illegal purpose and that the organization’s claimed status as a church did not protect it from application of the illegality doctrine.

The Fairness in Class Actions Litigation Act of 2017 (H.R. 985): A Few Thoughts

By Professor Simona Grossi

The Fairness in Class Actions Litigation Act of 2017 (H.R. 985) is currently pending in Congress. The bill, purportedly intended to reform class actions and bring “fairness” to the process, implicitly reveals, and not that covertly, the proponents’ disapproval of the work that the Advisory Committee has been doing on Fed. R. Civ. P. 23 for the past five years. Apparently the Advisory Committee is not moving fast enough or in the preferred direction. Of course,  Congress has the constitutional authority to provide rules of procedure for  Federal courts, but the system devised under the Rules Enabling Act (REA) has the benefit of proceeding through a transparent public process that, although far from perfect, promotes a fair consideration of all sides of any proposed alteration of the federal rules. Measures pushed through Congress, although subject to the usual hearing process, rarely have the detailed consideration and input from all interested parties that occurs under the rulemaking system followed by the Advisory Committee.

The procedural reform imposed by H.R. 985 is not a bottom-up, but rather a top-down imposition of   relatively narrow point of view. It is certainly not the product of the type of public forum system followed by the Advisory Committee. True, the legislature is representative of the people. But it is truly so? To what extent? And even assuming that it is, the class actions topic is so technical—sometimes even hyper technical for the experts in the field—that it demands a focused and narrow process of reflection and study, exchange and confrontation, precisely the one the Advisory Committee engages in and has engaged in with respect to Rule 23.

In Kindred, Supreme Court to Revisit Mandatory Arbitration Clauses

Professor Adam Zimmerman offers his thoughts on Kindred Nursing Centers v. Clark, scheduled for oral arguments before the U.S. Supreme Court on Wednesday, Feb. 22.

Kindred involves one of the latest challenges to mandatory arbitration clauses that bar class actions.  The Supreme Court in a series of cases since Concepcion has broadly permitted corporations to require that consumers enter arbitration agreements waiving rights to bring class actions in any forum.  But long before Concepcion, the Court also drew an important distinction for parties challenging arbitration agreements.  In Buckeye Check Cashing, the Court said a party who challenges the terms of an agreement that includes an arbitration provision has to raise that problem in the arbitration itself.  But when a party challenges whether or she entered into an arbitration agreement at all, the Court suggested that's something for courts to decide under state law.  

Nursing home cases raise that problem because many people in nursing homes may rely on someone else to enter into the nursing home contract using a power-of-attorney.  The lower court found that, as a matter of state law, it could decide whether those mandatory arbitration agreements signed by those using a power of attorney were invalid and ultimately found they were.  The Supreme Court will now decide whether, under the logic of cases like Concepcion, the Kentucky Supreme Court should have enforced the arbitration agreement under the Federal Arbitration Act, or instead, whether a party can raise state law challenges to entering such an agreement. 

Another Personal Jurisdiction Case in the Supreme Court

By Professor Simona Grossi

Some people have asked me to comment on the latest personal jurisdiction case pending in the U.S. Supreme Court. It did strike me that the Supreme Court has granted review in another personal jurisdiction case. As described by the Petitioner in BNSF Railway Company v. Tyrell, No. 16-405, the question presented is the following:

Whether a state court may decline to follow this Court’s decision in Daimler AG v. Bauman, which held that the Due Process Clause forbids a state court from exercising general personal jurisdiction over a defendant that is not at home in the forum state, in a suit against an American defendant under the Federal Employers’ Liability Act.

I would describe the question somewhat differently. I would say that the question is whether FELA authorizes the exercise of personal jurisdiction in state and federal courts in those states in which a railroad is “doing business,” and if so, whether Congress has the power to do so.

In relevant part, FELA provides that

An action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.

45 U.S.C. §56. Plaintiffs filed their FELA suit in a Montana state court. The defendant did not reside in Montana, nor did the injury-causing incident occur there. The defendant was, however, engaged in regular course of business in Montana. Thus, in filing their suit in Montana, the plaintiffs relied on the doing-business portion of §56.

Loyola Law School Ranked #16 on List of 'Best Schools for Bar Exam Preparation'

Loyola Law School, Los Angeles is ranked #16 on The National Jurist Magazine​'s list of the top 40 "Best Schools for Bar Exam Preparation," outperforming the predictive results of all its California peers!

On Behalf of the Community

Professor Eric Miller recently presented at the Association of American Law Schools Annual Meeting panel “#BlackLivesMatter: Balancing Security with Dignity in American Policing" raised points that are particularly salient in light of the Chicago report. His talk, published below, which is the basis for his forthcoming law review article in the Fordham Urban Law Journal.

A new manifesto of sorts is emerging from certain quarters of the academy challenging us to rethink our parochial approach to criminal justice. The challenge is to detach the way we think about policing from the context of the Fourth and Fifth Amendments, and instead approach policing in the context of some more general questions about the justification of criminal law and criminal punishment. This manifesto of sorts is being worked out by a loose collection of Anglo-American scholars, who have revived the long-dormant political question of how to justify the police within the apparatus of state punishment. That question last made a major appearance in the American legal academy in the 1960s, when Herbert Packer raised it as part of his book on the Limits of the Criminal Law. But it was soon drowned out by doctrinal and sociological approaches to policing.

The Black Lives Matters movement has also raised a series of political questions that have lain dormant for about half-a-century: indeed, since the last major period of racial unrest in the 1960s. Some of those questions are: what are the police? What is their role? To whom are they accountable? Whom do they represent? In the late 1960s and early 1970s a variety of sociologists and administrative law theorists including Jerome Skolnick, James Q. Wilson, Egon Bittner, William Ker Muir and Kenneth Culp Davis provided what has seemed like a definitive answer: that the police are those people entrusted with the situational power to deploy force in the community. But the Black Lives Matter movement, along with the less organized but equally compelling smartphone scrutiny of police violence, has given use good reason to be unhappy with this answer. The situational power to deploy force does not appear to represent the rule of law and the rights of civilians on the street. So the sociologist’s answer, telling us what, descriptively, the police actually do, does not tell us whether, normatively, the police ought to be doing it, and, politically, on behalf of whom they do it.

The political and normative set of questions raised by the Black Lives Matters movement I am particularly interested in, are the questions of representation and agency: on whose behalf to the police act? Police legitimacy often depends upon the answers to these questions: they gain their authority to intervene, including to deploy force, because of their role as state or municipal agents. In acting as the police, they act in their role as public officials authorized by the laws of the relevant jurisdiction that confer the legal power to act as they do. As Michelle Dempsey makes clear, the point is a conceptual one: without a state or a municipality to represent as publicly authorized officials, they would not be police. When, for example, the Mafia takes over the role of ensuring public order in the communities they control, they do not become “the police,” because they represent the Mafia, rather than the state.

The Mafia, like the police, often claim to act on behalf of, not only the state or municipality, but also the community. Indeed, the whole community policing movement gains its resonance from that claim. But what does it mean to “act on behalf of” a community? Because it is possible for the state, and thus for state officials, to fail to serve the communities they are supposed to govern. Your country is founded on just such a claim. Are the police an institution that, by its very nature, represents the community in addition to the state?

In our current political climate, the question of whom the state represents is a live one: large chunks of people on the right of the political spectrum have claimed that President Obama does not represent them, and large chunks of people on the left of the political spectrum claim that President-Elect Trump does not represent them, either. These communities are making an important political point: to represent some group is to claim to be authorized by that group to speak and act on its behalf. The police have a pretty compelling claim to speak and act on behalf of the state: they are members of the executive branch of government, and the various constitutive rules of government identify them as state agents. But speaking on behalf of the community is a question of political rather than institutional legitimacy. And it is that question that is being pressed by the Black Lives Matter movement, and requires a political answer that goes beyond the constitutive rules of the state.

One political answer is that acting on behalf of a community—representing a community by speaking on its behalf and acting in its name—requires regarding oneself as answerable to the community. It requires regarding community members as having standing to call you to account, as a community representative, for what you are saying and what you are doing. And this idea of accountability has important consequences for the political standing of members of the public on the street, in their interactions with the police.

The police provide two answers to the question of how they are answerable to the community: the first is that they express the values and interests of a particular group, for example by soliciting public opinion and input as to how to deploy their resources. This is the answer promoted through the community policing movement: the police are not mere agents of the state, but responsive to the needs of the community.