Prison for Whistleblowers

By Mike Dorf

Last week, in a column and accompanying blog post, Sherry highlighted a peculiar Kansas law/interpretation of law, under which force in self-defense is legal but the threat of force is not.  File this post under "anything Kansas can do, Texas can do weirder."

Yesterday's NY Times carried the story of a nurse who is being prosecuted for reporting on a doctor with whom she worked who was, she said, operating unsafely and unethically.  The weird part: Even though she appears to be legally protected against firing, suspension and "other adverse personnel action" by a Texas whistleblower protection law, nurse Anne Mitchell is now facing a criminal trial for "misuse of official information" for reporting the doctor's missteps to the medical board.












The Times story presents the case as more of a contradiction than it necessarily is.  The whistleblower law only protects reports in good faith, and the prosecution in the criminal case, it appears, will have to prove that Nurse Mitchell acted with the sort of malice that could not be the product of good faith.  Even for a bad faith report, criminal prosecution seems rather harsh--a kind of criminal defamation action--but it's not inconsistent with the Texas whistleblower protection law, as suggested by the Times story.  Truthful whistleblowers are protected against retaliation and, tacitly at least, protected against criminal prosecution as well.

Suppose the law were otherwise, however.  Would it ever make sense to protect whistleblowers against job-based retaliation while permitting criminal prosecution?  Sure.  We might imagine that the law would give whistleblowers an incentive to blow the whistle, even while permitting prosecution for illegal conduct that produced the underlying information.  For example, a person who broke into his boss's home where he discovered evidence that the boss was taking bribes or submitting false expense reports would be protected against firing or other job-related retaliation for the disclosure of the boss's wrongdoing but would not be shielded against prosecution for the break-in.

In practice, however, the possibility of criminal prosecution--even if for conduct revealed by the whistleblowing though not for the whistleblowing itself--will have a very substantial chilling effect on whistleblowing.  So even if criminal prosecution for related conduct is theoretically consistent with protection against retaliation for whistleblowing, few people who fear prosecution for underlying conduct that led to, and will be revealed by, their whistleblowing, will be sufficiently protected by a whistleblower protection law to actually blow the whistle.

Change in Blog Scheduling

-- Posted by Neil H. Buchanan

Because of FindLaw's publishing schedule, there will be a change in the weekly schedule on Dorf on Law. On Thursdays, Mike Dorf and Sherry Colb will (on alternate weeks) discuss their newest FindLaw pieces. I will permanently move to Fridays, even on the weeks when I have not written a FindLaw column. Posts on Mondays through Wednesdays (and occasionally on weekends) will continue to be provided by Mike, and every now and then by other DoL bloggers.

I'll be back this Friday with further discussion of the deficit brouhaha in Washington. Thank you for reading Dorf on Law.

3-D Fails Another Test

-- Posted by Neil H. Buchanan

In two earlier Dorf on Law posts -- "Tech for Tech's Sake," a bit more than two years ago, and "The Third Dimension," last Spring -- I commented on the use of three-dimensional technology in modern movies. (In the original post, I drew an analogy between 3-D movies and a recent trend in the academic legal literature. I have since dropped any pretense that this is anything but a discussion of movies by an amateur film buff.)

Referencing 3-D versions of "Beowulf," "A Nightmare Before Christmas" (which I had also seen in 2-D years before), and "Monsters vs. Aliens," I expressed surprise that a fringe technology that had been around since the 1950's had suddenly become the new fad in Hollywood. On the merits, I concluded that 3-D technology not only was not a revolutionary breakthrough but was possibly even a distraction that diminished the movie-going experience.

For some reason, Hollywood has ignored my opinion, and the rush to release more and more movies in 3-D has only intensified over the last year. The buzz among techies is that 3-D television is not far away (making my recent purchase of a 50" plasma TV look quaint). As a lover of movies and TV, I continue to hope that all of this energy will result in something great, something that justifies all the time and money spent on chasing this new technology. This is, therefore, yet another case where I hope to be proved wrong. (My current view of the Obama administration is another.)

I should state clearly that 3-D technology does continue to improve on a technical level. The images really do look three-dimensional and natural most of the time, rather than weirdly floating in odd juxtaposition to one another (as in "Beowulf"). Even so, the audience still must wear those annoying glasses, which is the next technological hurdle.

It is also notable that there is no longer a price premium for 3-D films, removing one of the possible explanations for Hollywood's obsession with pushing such movies. At this point, it has apparently become necessary to compete with other studios by releasing 3-D movies. A big part of this, of course, is generational. I am no longer in the key movie demographic (by any stretch of the imagination), and children are now growing up taking 3-D technology for granted. There is probably no going back.

Inevitability does not, however, imply superiority. Whereas previous technological breakthroughs -- moving cameras, sound, color, "Star Wars"-style special effects -- were truly and obviously breakthroughs that changed what movies can do, it is my strong impression that 3-D still does nothing to improve (or even change in a meaningful way) the viewer's engagement with a movie.

As always, my opinion is subject to revision based on new evidence. I was, therefore, especially intrigued by the possibilities presented by "Avatar" as an example of a movie that would deliver on the promise of 3-D technology. Being a skeptic of 3-D, I first saw the movie in 2-D shortly after its release (and thus before it had become a mega-hit). I decided that this would be a good opportunity to compare and contrast technologies, so I recently went to see the movie in 3-D. Much to my surprise, I found even with this movie that the 3-D version was no more interesting or entertaining than the 2-D version. The 3-D version was not worse (which was the case for "A Nightmare Before Christmas"), but it was no better. I should emphasize that I really liked the movie in both versions. I am not, therefore, saying that it is a bad movie. It is just not any better in 3-D.

Most readers will have seen "Avatar" by now, I suspect. Although it is not as good as "Blade Runner," the two movies are comparable in having extremely pedestrian plots combined with wildly imaginative fictional settings. "Blade Runner" was based on a very old sci-fi concept about the nature of consciousness and humanity, with a plot twist that one could see coming a mile away. "Avatar" was (and I mean this descriptively) a simple "noble savages vs. white exploiters" story. It is "Dances With Wolves on Another Planet," or perhaps "Dances With Blue Cat People." Given how good "Dances With Wolves" was, however, that is not an insult. It is merely to say that the genius of the film is not in telling a unique story but in presenting a revolutionary visual experience.

Which makes this, I thought, a perfect test case for 3-D technology. In a world with floating mountains, bright purple birds, and glowing plants, 3-D would have its best chance to prove its worth. Surprisingly, nothing in the 3-D version was any more thrilling or more vividly imagined than in the 2-D version. The filmmakers deserve credit for not throwing things at the audience just to make them flinch, which shows admirable restraint (and a lack of desperation). Nevertheless, even the scenes with characters flying on "horseback" were no better in 3-D than in 2-D. (There were great in either version.)

Perhaps, however, this is an unfair test of 3-D. A movie that is so visually riveting in 2-D technology might simply not be open to improvement. If so, however, we have a problem. "Beowulf" was a mediocre-to-bad movie, and 3-D could not save it. "Monsters vs. Aliens" was a pretty good movie, but 3-D did not improve it. "A Nightmare Before Christmas" was an excellent movie," and 3-D made it less great. And now "Avatar" is a visually stunning movie that 3-D could do nothing to improve. Where is the opening for 3-D to do something positive for movies?

As I mentioned above, none of this will slow the rush toward adopting 3-D technology for more and more films. Will it become the case that every movie will be released only in 3-D? Will brilliant films like "A Single Man" and "A Serious Man" be produced in 3-D, "just because"? We do see movies that forsake the use of some modern technologies (most obviously "Star Wars"-like special effects, but also artistic decisions to film entirely or partially in black-and-white), so it is possible that filmmakers will continue to produce films as different (and great) as "Up in the Air" and "Drag Me to Hell" without resorting to the new technology.

One of the best films of 2009, "Inglourious Basterds," obviously could not have been improved by 3-D technology. Even so, its director, Quentin Tarantino, is a genius at mixing visual styles within one film. (See especially the "Kill Bill" movies, which wove together not only color and black-and-white filming but even anime.) Maybe Tarantino will figure out a way to make 3-D both interesting and essential. I remain skeptical but ever hopeful.

Fired or Laid Off?

 By Mike Dorf

During the last economic contraction--after the bursting of the dot-com bubble at the turn of the century--a number of prominent law firms appeared to be using the following stratagem: Instead of laying off associates, they were letting people go for ostensibly poor performance.  To the outside world this looked better than layoffs because it did not communicate that business had slowed down, but to the young lawyers who were let go, it was cruel.  On top of the loss of a job, they were saddled with the stigma of having been fired for performing badly, making it that much harder to get a new job.  Strictly speaking, the dismissed lawyers perhaps could have sued the firms for defamation if and when they told prospective employers that the former lawyers had performed badly, but suing a former employer is almost never in the interest of someone trying to find a new employer.  And so the young lawyers simply had to take the hit.

In the current economic downturn, most law firms had to let go of so many lawyers that they simply could not get away with the gambit just described.  If a 350-lawyer firm dismisses 15 lawyers in a year, it can plausibly claim to be cutting poor performers.  Not so if it sacks 50.

Nonetheless, I have what I regard as pretty strong anecdotal evidence (from outside Cornell) that the practice at issue has migrated to tenure decisions in university departments in the arts and sciences around the country.  Here's a typical example: A large history department that tenured 3 of 4 tenure-track internal candidates in 2005 tenured 1 of 4 such candidates in 2009.  Because the total number of people at issue in any given year is small, the department can plausibly claim that the class of 2009 simply happened to be weak, but I've seen or heard of this happening in enough places that it is very hard not to understand these decisions as being strongly influenced by resource constraints.

The impact on the people denied tenure closely parallels the impact on the dismissed lawyers.  Being denied tenure "on the merits" makes it especially difficult to find a tenured or tenure-track position at a remotely comparable institution.  Nor are dismissed academics very likely to sue for defamation, both because of the harmful reputational effects and because it's very difficult to prove that a tenure denial was illicit.

Does this mean that nothing can be done?  Perhaps not.  At the very least, institutions--whether law firms, universities, or other employers--that disguise layoffs as performance-based firings can and should be exposed, and thus shamed into taking the reputational hit themselves.  Some enterprising do-gooder could start a website--"laidoffnotfired.org" is an available domain name--dedicated to collecting stories.

Former workers of the world unite.  You have nothing to lose anymore anyway!

Threats Versus Physical Violence

By Sherry Colb

In my column for this week, I examine a Kansas Supreme Court decision holding that under Kansas law, permissible self-defense includes only actual violence, not the threat of violence.  This means, in the particular case, that a defendant who threatened to hurt his alleged assailant as a means of self-protection may be prosecuted without resort to a self-defense instruction for the jury.  If the defendant commits no actual violence, in other words, he could not have acted in self-defense.  The column discusses the perversity of this ruling and notes that it effectively illustrates the pitfalls of unthinking "plain meaning" interpretation of statutes.

Here, I want to focus on the difference between violent threats and violent actions, because there are some potentially noteworthy distinctions.  Along one dimension, of course, threats are less harmful than actual violence.  Having an assailant say "I will shoot you if you don't hand over your money" is, by most accounts, less harmful than having an assailant shoot you and then take the money (or, for that matter, shoot you and leave the money behind).

Threats can, however, sometimes accomplish more than physical violence can, and when the "accomplishment" is destructive rather than benign, it might be fair to characterize the threat as "worse" at some level than the violence.  For a simple example, consider how terrorism works.  Terrorism typically involves actual physical violence -- whether that means killing or wounding its victims.  The underlying purpose (or a primary purpose) of terrorism, however, is communicative, expressive, and manipulative, not unlike like the point of a threat.

Take a paradigmatic example of self-defense.  Assume that an intruder has just broken into your home and is holding a knife.  You pull out a gun and point it at the intruder.  Assume that you then threaten to shoot the intruder if he does not vacate the premises.  Your objective is probably not to kill the intruder (otherwise, you would just shoot him).  Instead, you hope to persuade him to believe that he is better off leaving your home than staying and doing whatever it was he originally planned to do.  Your goal in threatening him, in other words, is to manipulate the intruder's conduct.  In your case, of course, your goal is legitimate, because the intruder should leave your home and should never have entered in the first place.

Now consider an act of terrorism.  Assume that the terrorist kidnaps one person from a building in a big U.S. city and then executes the person on video, which he then circulates throughout the world.  The terrorist may well have chosen the individual at random and have no particular interest in having that person die.  The goal of the act has almost nothing to do with the particular individual selected as a victim and everything to do with the audience.  The audience is everyone in the U.S. (and arguably beyond), and the goal is make the audience feel insecure and act in the way that insecure people act (which could include, among other things, authorizing the government to carry out disproportionately violent attacks on loosely related parts of the world).  The message of the terrorism is "You are not safe.  You need to do something to protect yourself from hidden enemies."

Except in unusual circumstances, a terrorist is not able to kill large numbers of people at the same time.  By killing only one, however, or a small number, he manages to do much more than destroy the lives of his victims (who are, after all, a mere "means" to the perpetrator's ends); he accomplishes the goal of making large numbers of people feel threatened and alter their behavior accordingly.  Indeed, with a credible threat, a terrorist could perhaps alter behavior in this way without actually killing or injuring anyone.

Does this make threats worse than actual violence?  Only in the sense that if the alteration in behavior accomplished by the threat is large and destructive enough, it may result ultimately in more violence and suffering than any that the lone terrorist might have inflicted directly.  Seen this way, threats can be more powerful than physical violence and must therefore be considered -- for good and ill -- in that light.

How Public Opinion Influences Judicial Decision Making

By Mike Dorf

As I noted last week, I recently attended a conference on The Judiciary and the Popular Will.  In my earlier post on the conference, I previewed my paper.  Here I'll say a little bit about some of the other papers.

The presenters included a fair number of political scientists and poli-sci-oriented law profs.  Both groups were interested in measuring the size of the effect of public opinion on Supreme Court decision making and the mechanism by which it is transmitted.  Supporting data will come eventually in the published papers, but a preliminary observation is in order: I was surprised by the degree to which the number crunchers found evidence of a direct effect of public opinion on Supreme Court decisions.  I had taken for granted that the chief mechanism by which public opinion influences the Court is judicial appointments: Presidents select and Senates confirm Justices who, broadly speaking, share the public's values.  Nothing I learned at the conference casts doubt on this phenomenon, but substantial evidence was also presented showing that individual Justices are responsive to public opinion over their careers.

Without posting the data and the regressions run, it's hard to make the point precisely.  It's also hard to distinguish between two phenomena: A) Justice X changes her mind on some question because she observes that public attitudes have changed; versus B) Justice Y, as a participant in the same culture as the population as a whole, changes his mind at roughly the same time that the public does.  With an important exception to which I'll return momentarily, rule-of-law values treat A) as highly questionable: judges are supposed to decide cases according to the law, not public opinion.  By contrast, anyone who is remotely realistic will acknowledge that B) is routine.

Now a word on the exception.  Some doctrines expressly take account of public opinion or something related to it.  For example, under the 8th Amendment, a punishment is impermissibly "cruel and unusual" if it offends "the evolving standards of decency that mark the progress of a maturing society."  Thus, we can explain the Supreme Court's decisions in the 1970s--first invalidating the death penalty in Furman v. Georgia and then validating new death penalty statutes in Gregg v. Georgia and companion cases--as a process of self-correction: The Justices thought that society had evolved away from the death penalty, but the legislative reaction to Furman showed that it hadn't, and so the Court adjusted in Gregg.

However, outside the context of legal tests that directly incorporate some notion of public opinion or widely shared values, Justices are quite reluctant to acknowledge a direct role for public opinion.  There may well be one--and some of the examples of quick retreats by the Court or individual Justices, without a change in personnel, strongly suggest that public opinion is directly playing such a role.  So too, a large-n study correlating the liberal-versus-conservative "public mood" with liberal or conservative outcomes tends to support the inference of direct impact on Justices' decisions.  But even there, one could hypothesize instead that the Justices are part of the same mood swing so that rather than reacting to the public change of heart, they simply share it.

Two nice test cases that show how hard it is to tease out the difference between Justices reacting to public opinion and Justices changing their own mind are the two living retired Justices: O'Connor and Souter.  Both Justices O'Connor and Souter became generally more liberal over the course of their respective time on the Court, even as the public mood yo-yo'ed a bit.  Moreover, in much of the same period, other Justices, such as Scalia and Thomas, did not become more liberal.  It is thus hard to attribute the ideological drift of either O'Connor or Souter to broad factors affecting the society as a whole or to micro-shifts in public opinion on particular issues.

At the same time, however, it is by now a commonplace that Justice O'Connor had a knack for reflecting public opinion better even than elected legislators.  Whether that was entirely due to her middle-of-the-road sensibility or a mixture of her own attitude and an eye on public opinion is extraordinarily difficult to figure out.  It's quite likely that Justice O'Connor herself doesn't know.

Thus, I came away from the conference thinking that there is a very large research agenda for someone interested in figuring out how public opinion gets translated into judicial decisions.  I also think that research agenda will be very challenging to pursue.  The political scientists' measures of decided cases--in order to produce statistically significant results--must wash out all sorts of legal and doctrinal nuances that make a large difference in particular cases.  A complete picture of the decision making process in the Supreme Court (or other courts) would require expertise in statistics, law, psychology, and likely several other disciplines.  Whether insights from these fields can be successfully synthesized remains to be seen.

State Anti-Mandates

By Mike Dorf

An AP wire story that reports on a movement in state legislatures to forbid any sort of "individual mandate" to buy health insurance, even one coming from a federal statute.  The story (accurately) quotes me as follows: 

"They are merely symbolic gestures," said Michael Dorf, a constitutional law professor at Cornell University. "If this Congress were to pass an individual mandate, and if it is constitutional - which I believe it is - the express rule under the supremacy clause (of the U.S. Constitution) is that the federal law prevails."

In a display of typical two-sides-to-every-issue false equivalence, the story introduces this quotation by noting only that "it's questionable that such . . . measures could shield state residents from a federal health insurance requirement."  Questionable?  I'll say.  Much in the same way that it's questionable that the Flintstones accurately portrayed early human life in all of its details. You know, what with the "experts" questioning the co-existence of humans and dinosaurs.  Because, after all, other experts don't raise those questions.

Thus, at the risk of stating the obvious, I thought I'd reproduce my reasoning.  Here's the core of a fairly typical email I received:

Why do you believe that a Federal mandate to force individuals to buy private insurance is constitutional?  Furthermore, why do you believe that States who choose to exercise their 10th Amendment rights are only going through "symbolic gestures"?

And my reply:

If Congress has the power under Article I to enact an individual mandate, then it is valid law that, under the Supremacy Clause of Article VI, displaces any contrary state laws: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."  The Tenth Amendment reserves to the states only those powers that are not given to the federal government: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

So the only way that the state laws could be enforceable would be if Congress lacked the power to adopt the individual mandate.  However, as I argue here, Congress has the affirmative power.  Nor is the libertarian objection a constitutional obstacle, as I argue here. 

None of this is to say that the individual mandate or any particular health care reform bill is wise policy.  But the constitutional objections being raised are extraordinarily weak under existing precedents.

To all of that, I would simply add that discarding the modern doctrines on which my analysis is based--as was suggested to me by another emailer and has been sometimes advocated by Justice Thomas (but by no other Justice in over 70 years)--would be extraordinarily disruptive of the national economy.  There was a time, not to long ago, when stability was especially valued by conservatives.  Where have you gone, Dwight D. Eisenhower?  Our nation turns its lonely eyes to you.

Finally, happy Groundhog Day to all, especially the robotic groundhog being proposed by the counter-productive, self-parodying PR gurus at PETA.  (In case you're wondering, my complaint isn't that PETA is too radical; on the contrary.)

Will the Country Go BANANAs Over Terrorism Trials?

By Mike Dorf

Taken to its logical extreme, the NIMBY phenomenon--"not in my back yard"--leads to BANANA--"build absolutely nothing anywhere near anyone," because if some site is undesirable in X's backyard, it will often be undesirable in Y's backyard.  This phenomenon is now at work in the Obama Administration's apparent reversal of its initial decision to try Khalid Shaikh Mohammed and four accomplices in federal district court in Manhattan. In this post I want to underscore the path-dependence of how we got here.

According to published accounts, the volte-face by Mayor Michael Bloomberg and other NYC officials on a civilian court trial was the product of renewed terrorism jitters arising out of the foiled Christmas Day airline bombing and the revelation that the NYPD's plan to secure the KSM+4 trial would be inordinately expensive and disruptive of traffic (and thus business) in lower Manhattan.  Neither of these obstacles would be as serious in just about any other federal district court.

True, the whole country is jittery about terrorism, but given past events, including the first WTC bombing, 9/11, and various foiled plots, NYC is a special case.  Moreover, the congestion and disruption from the security plan for lower Manhattan are likely substantially higher than the impact in any other American city with a federal courthouse.  Thus, the factors that led NYC officials to reject hosting the KSM+4 trial would not necessarily lead to the same conclusion anywhere else.   Had the Administration planned trials somewhere else in the first instance, that other locale might have been willing to accept the costs (especially if compensated by the federal government.)  However, now that NYC has said NIMBY to the trial, it would be politically suicidal for elected officials elsewhere to say "bring it on."

Widening our frame even further, it's worth asking why the Bush Administration chose to hold detainees at Gitmo in the first place.  A big piece of the answer was the Administration's calculation that by doing so, it could avoid having to answer to courts about the legal and factual basis for detention in any particular case.  That hope proved illusory after the Supreme Court held that even Gitmo detainees have a right to federal court access (where the alternative is not equivalent to habeas corpus), but in the meantime, the Bush Administration had planted a different meme in the public mind: That the Gitmo detainees are so dangerous--the "worst of the worst"--that even housing them in a supermax prison on US soil would be to risk escape or terrorist attack from their comrades in arms.

Never mind that this was never the basis for holding the detainees at Gitmo or the fact that the civilian federal courts have successfully handled terrorism prosecutions before.  The sequence of events--hold them at Gitmo; then transfer them to NYC; then give up on NYC--has effectively convinced large numbers of Americans and their elected representatives that the security and logistical issues presented by a criminal trial in a federal district court are so great as to rule it out anywhere on U.S. soil.

It may not be fully rational, but the BANANA logic from this sequence translates into TANTSANA--Try Absolutely No Terrorist Suspect Anywhere Near Anyone.