Finding Justice for Greenwood

By Professor Eric Miller, Leo J. O'Brien Fellow

This week, Prof. Miller joined with other Justice for Greenwood advocates in discussing reparations for the Tulsa Race Massacre. Below is an excerpt of his remarks. View the press conference.

Overwhelmingly, white business and political leaders have sought to appropriate the history of the massacre for their own interests. They have done this since the days following the massacre itself. In the immediate aftermath of the Massacre, member of the State National Guard, the County Sheriff’s Department, and the City of Tulsa Police herded the survivors of the massacre into internment camps where they held for three days. In a scheme concocted by the Chamber of Commerce, the National Guard, and the City of Tulsa, white Tulsans could sponsor an internee, and farm them out under threat of violence and without pay in conditions that amounted to slave labor. Under this scheme, Black residents of Tulsa marked with a literal badge of inferiority, a green card that the survivors had to wear to avoid further reprisals.

The City and its white business class saw an opportunity to grab the land they had burned from the survivors of the Massacre. They ensured that the victims received no compensation from the City and enacted illegal fire regulations and zoning ordinances to prevent rebuilding. For the rest of the summer and through the winter, the Massacre victims lived as refugees on their own land in red cross tents. The City and County destroyed the leadership of the community, murdering local leaders, professionals, and business owners who contributed to the community's prosperity, including nationally renowned surgeon Dr. A.C. Jackson. The County empaneled a grand jury to indict Black community leaders, such as J.B. Stradford, a hotelier and businessman, and A.J. Smitherman, a local attorney. These leaders fled the state, never to return.

White Tulsans have sought to tell the history of the Massacre in ways that most benefit themselves. When word of the Massacre spread across the country, money started to flow in to help the survivors. The Defendants, including the Chamber of Commerce, decided that they would be the ones to tell the story of the Tulsa Massacre; and that they would determine what to do with the money.

Immediately following the murders, lootings, and burning, the City of Tulsa and Chamber of Commerce colluded to minimize the impact of the massacre in the local and national press. Initially, they appropriated for themselves money sent from around the country to help the homeless, destitute victims. To minimize the financial harm to white businesses, the white community, falsely labeled the Massacre a Riot and blamed the destruction on the Black residents of Greenwood. When that was not enough to rehabilitate the reputation of white business leaders, the City, the County, and the Chamber of Commerce denied the massacre had ever happened, and affirmatively rejected aid from around the country intended to assist the Massacre victims. For the next 75 years, white political and business leaders silenced Black Tulsans and the Greenwood diaspora from recounting their experiences of the massacre and demanding restitution. 

Prof. Miller Tesitfies on HR40 and the Path to Restorative Justice Before House Judiciary Subcommittee

Professor Eric Miller testified the following during the House Judiciary Committee Hearing on HR40 and the Path to Restorative Justice held Wednesday, June 19, 2019. Read his prepared remarks below or watch the recording of the testimony.

I will speak to my experience as an academic studying the issue of reparations and a lawyer representing the victims of the Tulsa massacre of 1921 in a reparations lawsuit against the state of Oklahoma and the city of Tulsa. In the short time available, I want to make the following points:

1. Local, state and federal governments were active perpetrators of race-targeted discrimination against, and domination of, African-Americans during slavery and Jim Crow.

2. These governmental institutions engaged in the massive social, political, economic, and cultural destruction of African American communities and individuals.

3. Many of the perpetrators and victims of race-targeted state action are readily identifiable through a thorough investigation of existing historical records in the hands of public and private institutions.

4. The race based disparities brought about by federal, state, and local government discrimination remain baked into our governmental institutions as well as the persistently segregated private social ordering those institutions brought about.

5. Reparations addresses the ways in which these institutions entrenched race-based discrimination and domination throughout American social, cultural, economic, and political institutions.

6. The committee should consider specific legal remedies to remove the time-limited bars against litigation, which are the major impediment preventing the identifiable victims of extraordinary race-targeted state action to sue state and federal governments for financial damages.

7. Reparations must also include rebuilding the social political economic and cultural infrastructure of the communities destroyed by the state.

8. Without social, cultural, and political reparations, race neutral programs of economic uplift will preserve the relative social and political disadvantage, domination, and disempowerment of African Americans across this nation.

The urgent need for the HR40 Commission, and reparations as the path to restorative justice for the victims’ state-sponsored racial injustice, became clear to me in 2003. That is when I joined the Reparations Coordinating Committee, a group of lawyers led by Charles Ogletree and Adjoa Aiyetoro. Our legal team filed suit representing the more than one-hundred still living survivors of the Tulsa, Oklahoma Race Massacre of 1921.

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.

"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.

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.

Black and Blue in Baltimore

By Professor Eric Miller
Originally appeared on Prawfsblawg

Was it worth it? A judge, after a bench trial, just acquitted the third and highest ranking of the Baltimore police officers charged with killing Freddie Gray. So far there have been no convictions. Should the Baltimore District Attorney prosecute the others? More generally, is there a duty to prosecute public officials, even if there is only a remote chance of success on the merits?

I think the work of Antony Duff might prove helpful here. He believes wrongdoers are a specific category of people identified by a duty that they are under: to answer to those they have wronged for their unjustified and harmful act. The duty to answer is, so Duff thinks, a feature of responsibility: wronging someone puts the wrongdoer in a relationship with their victim. The victim has the duty (not just the right, but—Duff believes—the duty) to call the wrongdoer to account; and the wrongdoer owes the victim a response: the wrongdoer has a duty to account for her wrongdoing by giving reasons to justify, excuse, or accept the blame for her wrongdoing, and then take action to expiate her wrong. Owing a response places the onus on the wrongdoer to come forward with her account; morally, she cannot just stand pat and hope no-one notices the wrong, or her responsibility for it.

The Fatal Costs of Drug Interdiction

By Professor Eric Miller
Originally posted on Huffington Post

Philander Castile was pulled over for a broken tail-light and shot while he reached for his registration. While there has already been much discussion of the shooting, one point is missing from the story: the police stop was likely a pretext to engage in drug interdiction.

Now I am not suggesting that Castile was stopped because he was black. Nor am I suggesting the contrary—that he was *not* stopped because he was black. What I am suggesting is that the primary purpose of the stop was *not* to tell him about his busted tail-light—an admirable act of beneficence on the part of the police officer—but to search Castile’s car for drugs. And it is this aspect of the encounter—a police officer, looking for drugs, and finding an armed individual inside the car, that inevitably produced the deadly result.

Loyola Professors Enrich Supreme Court Conversation

Loyola Law School, Los Angeles professors continue to enrich the dialogue about U.S. Supreme Court jurisprudence after the court concluded its 2015 term in June with commentary on cases ranging from evidence collection and affirmative action to immigration and abortion access. Their analyses reached millions of people nationwide via such outlets as NPR, the Wall Street Journal, the Los Angeles Times, Politico, Bloomberg and more on an array of cases:

AFFIRMATIVE ACTION: FISHER v. UNIVERSITY OF TEXAS AT AUSTIN

Professor Kimberly West-Faulcon, the James P. Bradley Professor of Constitutional , weighed in on the U.S. Supreme Court’s 4-3 rejection of a challenge to the affirmative action-based admissions policy of the University of Texas at Austin. West-Faulcon, a nationally recognized expert on standardized testing and reverse discrimination claims, filed an amicus brief in the case. She provided analysis to several outlets:

“Surprisingly, Facts Rule the Day in Fisher II,” SCOTUSblog, June 24, 2016

Yesterday’s decision in Fisher v. University of Texas at Austin marks the first time Justice Anthony Kennedy has ruled in favor of a racial affirmative action policy in the twenty-eight years he has served on the Supreme Court. Unwilling to sound the death knell on racial affirmative action in higher education, Kennedy ventured down a path he had never taken before. He upheld the race-conscious component of the University of Texas at Austin’s admissions policy as satisfying the stringent strict-scrutiny standard of review. Instead of siding with rejected white applicant Abigail Fisher or ruling that affirmative action is per se unconstitutional as Fisher’s lawyers contended, Kennedy upheld the policy Fisher challenged as unconstitutional despite an oft-articulated constitutional aversion to race consciousness.

“Supreme Court Upholds Use of Affirmative Action at Universities,” Los Angeles TImes, June 23, 2016

“This is momentous,” said Kimberly West-Faulcon, a law professor at the Loyola Law School in Los Angeles. “Justice Kennedy has finally found a racial affirmative action policy that he was willing to endorse. This is a significant departure.”

“Scholars: Fisher Decision Gives Colleges ‘Breathing Room’ to Consider Race in Admissions,” Diverse Issues in Higher Education, June 23, 2016

Kimberly West-Faulcon, the James P. Bradley Chair in Constitutional Law at Loyola Law School in Los Angeles, said Kennedy’s decision represents a “significant departure” from his previous decisions in affirmative action cases.“This is momentous,” West-Faulcon said. “Justice Kennedy has finally found a racial affirmative action policy that he was willing to endorse.“This is a significant departure from every racial affirmative action case Justice Kennedy has decided to date,” West-Faulcon continued, referring to Kennedy’s votes against affirmative action policies in two higher education cases — Grutter and Gratz — as well as other cases.

POLITICAL CORRUPTION: McDonnell v. U.S.

Professor Jessica Levinson, who teaches Laws of the Political Process and Money, Politics & the Supreme Court, opined on the Supreme Court’s vacating of the political corruption conviction of former Virginia Gov. Bob McDonnell. Her commentary appeared in several stories:

“Politics As Usual Is Not Illegal,” Sacramento Bee (Op-Ed), June 28, 2016

As a result of the court’s opinion, plenty of really disgusting behavior, like that of McDonnell, is now legal. This is because the court significantly narrowed the types of behavior that are impermissible under the federal bribery statutes by reading the term “official acts” as requiring more than “merely arranging a meeting, attending an event, hosting a reception, or making a speech.” Instead, in order to be found guilty anofficial must “make a decision or take an action on (an) action or matter.”

“Supreme Court Throws Out Corruption Conviction of Ex-Virginia Gov. Bob McDonnell,” Wall Street Journal, June 27, 2016

The decision “kind of blesses a lot of activities that are problematic,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles. “If I were a prosecutor, I would be more circumspect.”

“McDonnell Ruling a Big Blow to Corruption Law,” Politico, June 27, 2016

"It allows for a great deal of activity that really sidelines the average person who can't give a Rolex, a Ferrari or throw a wedding for someone," said Loyola Law School professor Jessica Levinson. "It essentially acknowledges that business as usual in political means money talks really loudly."

SUPREME COURT COMPOSITION: Effects of Scalia’s absence on court’s jurisprudence

Professor Allan Ides, the Christopher N. May Professor of Law and a former clerk to U.S. Supreme Court Associate Justice Byron White, deconstructed how the alterered Supreme Court composition affected case outcomes.

“How a Bench of 8 Justices Changes Supreme Court Decisions,” KPCC-FM’s Take Two, June 24, 2016
Professor Allan Ides discusses the effects of Associate Justice Antonin Scalia’s death on the Supreme Court at it wraps up its 2015 term.

“Supreme Court Limps to Finish,” The Hill, June 26, 2016

“For run of the mill cases this is having no effect, but the high-profile cases — Friedrichs, the contraceptive case, immigration — it has had an impact and you can see it where the court has been unable to resolve the case or tried to find some gimmick to send it back to the lower court,” Allan Ides, a professor of law at Loyola Law School in Los Angeles, said about the impact of a short-handed court."

IMMIGRATION: U.S. v. Texas

The co-directors of the Loyola Immigrant Justice Clinic – alumnae Marissa Montes and Emily Robinson – were go-to sources of commentary on the Supreme Court’s opinion in U.S. v. Texas, which struck down President Obama’s executive action on immigration, Deferred Action for Parents of Americans (DAPA).

“Deadlocked Supreme Court Fails To Revive Obama's Immigration Plan,” NPR, June 24, 2016

Marissa Montes, Co-Director of Loyola Law School, Los Angeles’ Immigrant Justice Clinic, joins Morning Edition to discuss the Supreme Court's tie vote, which blocked an attempt to help millions of unauthorized immigrant families. The case goes back to the court of a conservative federal judge in Texas.

“After Supreme Court Deadlock on Immigration, What's Next?” Dallas Morning News, June 24, 2016

"We would be naive to think he is going to side with the immigrant advocates in this country who want protections," Emily Robinson, co-director of the Loyola Immigrant Justice Clinic in Los Angeles, said in an interview Friday.

EVIDENCE COLLECTION: UTAH v. STRIEFF

The Supreme Court opinion in Utah v. Strieff allows into court evidence found during an unlawful stop if the suspect was later found to have an outstanding warrant. Loyola professors opined on the impact of this decision in several stories:

“Illegal Evidence Allowed in Court,” Bloomberg Law, June 20, 2016

Professor Laurie Levenson, the David W. Burcham Professor of Ethical Advocacy, analyzed for Bloomberg BNA the Supreme Court opinion that On why this type of evidence is not considered fruit of the poisonous tree: “The court was using the Attenuation Doctrine. It’s never been used before in this situation,” said Levenson. “ The only thing you had here intervening was the arreseting officer finding an outstanding warrant.”

“Thoughts on Utah v. Strieff: A Blow to Democratic Accountability of Police,” Summary Judgments, June 21, 2016
Professor Eric Miller, who teaches Criminal Procedure and related cased, assessed the impact of the Supreme Court’s decision in Utah v. Strieff, which opened the door for police evidence to be presented in court even when obtained without a search warrant and without initial probable cause. His commentary appeared on the Summary Judgments faculty blog, “The police can now target high-crime neighborhoods in which individuals have greater likelihood of warrants and engage in random stops with virtual impunity. In a city like Ferguson, Missouri, where the number of outstanding warrants is larger than the number of citizens, the right to avoid the police is a chimera.”

Miller's commentary was featured on SCOTUSblog.

O’Bannon v. NCAA: Antitrust case In which Athletes Seek Payment for Likenesses in Videogame

Professor Jennifer Rothman has closely followed the case of O’Bannon v. NCAA, a case in which NCAA athletes are seeking payment for the use of their likenesses in a videogame. The case involves right of publicity issues – an area on which Professor Jennifer Rothman, Joseph Scott Fellow, is a nationally renowned expert. Rothman runs Rothman’s Roadmap to the Right of Publicity. Her filing of an amicus brief to the Supreme Court received coverage:

DC Antitrust Group, Law Profs Back NCAA's O'Bannon Appeal,” Law 360, June 17, 2016

Another brief from 28 legal scholars, dated Monday, focused on what the professors described as a problem with the Ninth Circuit’s First Amendment analysis. The 28 law professors are represented by Eugene Volokh of the UCLA School of Law and Jennifer E. Rothman of Loyola Law School, Los Angeles.

LIABILITY UNDER FALSE CLAIMS ACT: Universal Health Services, Inc. v. United States ex rel. Escobar

Professor Paul T. Hayden's book, "The Law of Torts," is cited in the U.S. Supreme Court's opinion turning on when liability arises under the False Claims Act.
[Excerpt from the opinion]

We need not resolve whether all claims for payment implicitly represent that the billing party is legally entitled to payment. The claims in this case do more than merely demand payment. They fall squarely within the rule that half-truths—representations that state the truth only so far as it goes, while omitting critical qualifying information—can be actionable misrepresentations. A classic example of an actionable half-truth in contract law is the seller who reveals that there may be two new roads near a property he is selling, but fails to disclose that a third potential road might bisect the property. See Junius Constr. Co. v. Cohen, 257 N. Y. 393, 400, 178 N. E. 672, 674 (1931) (Cardozo, J.). “The enumeration of two streets, described as unopened but projected, was a tacit representation that the land to be conveyed was subject to no others, and certainly subject to no others materially affecting the value of the purchase.” Ibid. Likewise, an applicant for an adjunct position at a local college makes an actionable misrepresentation when his resume lists prior jobs and then retirement, but fails to disclose that his “retirement” was a prison stint for perpetrating a $12 million bank fraud. See 3 D. Dobbs, P. Hayden, & H. Bublick, Law of Torts §682, pp. 702–703, and n. 14 (2d ed. 2011) (citing Sarvis v. Vermont State Colleges, 172 Vt. 76, 78, 80–82, 772 A. 2d 494, 496, 497–499 (2001)).

Nationalism and Reciprocity

By Professor Eric Miller
Originally appeared on Prawfsblawg

Thanks to the powers at Prawsfblawg for inviting me back. I'm a law professor at Loyola Law School, Los Angeles. I always appreciate the opportunity to place my nascent thoughts in the public forum, and see what interests folks. For the most part, I'll blog about criminal procedure in general, and in particular policing. But given the date, I thought something else might be more appropriate.

I’m Scottish. Given the current temporal proximity of Brexit and the Fourth of July, in which Americans celebrate their revolting forebear’s legally irrelevant secession statement, I'll impart one thought on nationalism. We might think that nationalism is a unilateral affair: it states “I assert my independent status as Scottish/English/American/etc.” But nationalism is, in fact, a bilateral or multilateral affair: in asserting your American identity, you rejected your British identity. It is possible to have multiple identities—Scottish and British and European. But multiplicity sits uncomfortably with nationalism. Even if Scots want to be independent *within Europe*, Scottish nationalists want to be *not-British* within Europe. And for Scottish nationalists, Europe is not an independent national identity: it is a subsidiary part of the Scottish identity. Scotland, the Scottish nationalists assert, is a European country, not limited in its projects to the British Isles (and maybe even not oriented in its projects to the British Isles).

Race and the Courts

By Professor Eric Miller 

 

Access to justice through our court system is skewed on the basis of race. In the criminal justice system, the decisions of of criminal justice officials to target, arrest, charge, prosecute, convict, and punish our citizens fall more harshly on minorities, and especially African Americans and Latinos. The effect is to channel Black and Brown people into the criminal justice system in greater numbers, and for longer, than similarly situated white individuals. 

The problems of race and the courts are local and structural. These problems are magnified in a criminal justice system that also responds to local and structural factors. Prosecutors, who make the decisions about whether to charge a defendant and the severity of the charge, are overwhelmingly white. They are incredibly powerful, and often have more impact on the sentence than the courts. Courts themselves are often overworked, and spend little time questioning the evidence in low-level criminal cases. At significant stages of the process—when sassing bail, or appointing counsel—the court may make decisions that undermine the rights of poor defendants. And those defendants are now often required to pay for the privilege of having a court release and monitor them on bail, probation, or parole.

Matters are even worse on the civil side, where minority plaintiffs lack the resources to hire attorneys, and minority defendants who are unable to pay fines often find civil penalties converted into criminal charges. Without adequate representation to argue for fine reductions on the basis of indigency, these litigants cannot turn to the court system for relief, but are instead re-victimized by an overworked system that sometimes cares more about processing cases than doing justice.

Thoughts on Utah v. Strieff: A Blow to Democratic Accountability of Police

By Professor Eric Miller

On Monday, the Court announced its decision in Utah v. Strieff, a Fourth Amendment case in which a man was unlawfully stopped leaving a house the police suspected of being a drug den. Upon searching Strieff, the arresting officer discovered methamphetamine and drug paraphernalia. Normally, the fruits of an unlawful search would be inadmissible in evidence. But what made this stop and search permissible was the officer’s discovery, upon asking for and checking upon on Strieff’s I.D., that Srtieff had an outstanding warrant, entitling the officer to arrest Strieff. The existence of the warrant, the Court held, was an unforeseen intervening event breaking the chain of illegality and permitting the police to arrest and search the defendant in good faith, free of the sanction of exclusion.

The decision, over an impassioned dissent by Justice Sotomayor, is a real blow to the democratic accountability of the police. To see why, consider a fairly old case in which the Court discussed an encounter somewhat like this: Sibron v. New York, 392 U.S. 40, 44-45, 61-63 (1968). In that case, an officer standing outside a cafe suspected Sibron of drug dealing inside a cafe, could not confirm that suspicion from his position outside the cafe, and performed and unconstitutional stop resulting in the discovery of drugs. While the major difference is, of course, the attenuation issue, it is worth considering that Sibron had a right to walk away from the police officer—a right emphasized by Justice White and Justice Marshall’s concurring opinions in Sibron’s more famous companion case, Terry v. Ohio, and reiterated in the “free to leave” seizure context (Schneckloth v. Butamonte, INS v. Delgado, Florida v. Drayton, etc.).

Politics and the Supreme Court

By Professor Eric Miller

Prof. Miller is guest blogging on Prawfsblawg, where this post originally appeared.

I had thought of writing something about Justice Scalia. I was not a huge fan of his politics; and I thought the manner in which he expressed himself both in his opinions and public appearances often went out of his way to diminish his opponents. If you were a criminal defendant, a person of color, a woman, a member of a labor union, or gay (the list is non-exhaustive), then at some point Justice Scalia did something that was materially harmful to your interests, and he usually disparaged you (or your legal proxy) for arguing for those interests in the forum of constitutional law. The fact that some people found him personally charming seems immaterial to those of us hurt by his decisions and outraged or disappointed or just plain unamused by his rhetoric. Donald Trump is also a personally charming man whose rhetoric and actions have malicious consequences, and I'm no longer a Tom Brady supporter given his "nice guy" defense of Trump. It's nice that the institution of the Court got to operate in a civil manner because he was not personally offensive to the other justices (or to his clerks or his former law school colleagues, it seems), but the great Justice could be notoriously churlish to those of us who were not a member of those clubs.

Trusting Policing

By Professor Eric J. Miller

For the past eight months, since the shooting of Michael Brown, an unarmed Black man in the City of Ferguson, Missouri, the problem of white police officers using excessive force upon unarmed African Americans has gripped the United States of America The latest incident occurred last week, at a public swimming pool in McKinney, an upper-middle-class suburb of Dallas, Texas. Eric Casebolt, a police officer responding to reports of a fight at a public swimming pool, started shouting at the African American children attending a pool party. A bystander’s video shows him wrestling a bikini-clad and unarmed African American teenage girl to the ground, then drawing his weapon and using it to threaten other African Americans who were clearly disturbed by his use of force. He then kneels on the girl, whose screams of pain can distinctly be heard.

A common trope in contemporary policing is the idea that policing depends upon trust between the police and the community. Building trust between the police and communities is a central part of President Obama’s initiatives to strengthen relationships between communities and the police. But trust (and its opposite, distrust or suspicion) can be misplaced in stereotypical ways that unfairly empower or disempower people or groups. In those sorts of cases, we wrong people when we jump to conclusions based on their race, or gender, or some other superficial feature, and on that basis do afford their assertions less credibility than they deserve. In some cases, we give credence to the testimony of a witness because he is male, or white, and withhold it from another because she is female, or Latina. In countries around the world, we’ve seen, to our cost, that we tend to dismiss children when they claim abuse, but believe the priest or parent because of his position in the community.

Implicit Bias at the Point of Contact: Refereeing and Police Encounters with the Public

By Professor Eric Miller

This post originally appeared on Prawsblawg.

Since the World Cup is over, and the best team won, this is my last post on soccer, refereeing, and policing, I promise.

This is my last post on soccer, refereeing, and policing, I promise. In the dying minutes of the group-stage game between Ivory Coast and Greec, the Greek striker Samaras tangled with an Ivory Coast player, and the referee awarded a penalty. Foul? Flop? The penalty certainly looked really soft. What provoked some ire from my friends on Facebook was, not only the fact that the penalty seemed to be an overreaction, but that it was an overreaction to a foul committed by a black person on a white one. Was bias at play here.

The—by now familiar—answer is: probably. My buddy Song Richardson has written some great articles explaining how implicit bias works. Because officiating requires the referee to make instant fact-based determinations in highly stressful circumstances, these judgements prove susceptible to an unconscious, implicit bias. Implicit biases affect all of us, regardless of our race. But they impact us in strikingly racially differentiated ways.

Richardson is concerned to demonstrate the relevance of recent innovations in cognitive science for the Fourth Amendment in general, and police encounters with racial minorities (primarily African Americans) in particular. Her argument is both simple and powerful: the current Fourth Amendment doctrine on stop-and-frisks promotes a form of policing that is racially biased and practically inefficient. The cause of the inefficiency is unconscious cognitive biases that the officer may not be aware of; the problem is that such biases decrease the efficiency with which an officer is able to separate criminal from non-criminal activity.

Is Rote and Mindless Legal Practice Our Standard?

By Professor Eric Miller

This post originally appeared on Prawsblawg.

Last week, I suggested that the legal academy could do with providing a more concentrated study of legal materials to prepare students for practice. I actually think the case could be made stronger: for many, not only is knowledge of the legal materials in a given doctrinal area our core competence: it is the central obligation of the legal academy to provide competence in legal doctrinal knowledge.

I chose criminal law as my central example. But my point was supposed to apply more generally to torts, contracts, family law, and so on across the curriculum. In short, the argument is that concentration in a particular practice area should not simply mean a wider range of courses, it should primarily mean greater interaction with the extant doctrine.

My claim is that the substantive version of "practice ready" does not require the academy to match practice. I think that is especially the case if the bulk of practice involves the equivalent of agency capture, so that the lawyer becomes divorced from the clients, and instead becomes part of a quasi-bureaucracy. That may be a feature of production-line litigation, and the criminal law may be more prone to that style of litigation than other fields (although tort law shares some of these characteristics). But equipping lawyers to recognize complexity and co-option when it occurs should be part of our teaching mission. Where judges and co-counsel fail to see the issues.