As the Court continues to sort out these issues, the Justices might benefit from reading a new note in the Marquette Law Review by Justin Webb.  Justin’s paper, entitled “Car-ving Out Notions of Privacy: The Impact of GPS Tracking and Why Maynard is a Move in the Right Direction,” argues in favor of the D.C. Circuit’s approach.  The abstract appears after the jump.

In a controversial decision in 2010, the D.C. Circuit held that warrantless GPS tracking of an automobile for an extended period of time violates the Fourth Amendment. The D.C. Circuit approached the issue in a novel way, using “mosaic theory” to assert that aggregation of information about an individual’s movements, over an extended period of time, violated an individual’s reasonable expectation of privacy. Because the D.C. Circuit’s decision gave rise to a circuit split, the Supreme Court granted certiorari to resolve the conflict, and will thus decide one of the most important Fourth Amendment cases since 1983. This Note discusses how state and federal courts have dealt with warrantless GPS tracking, and ultimately asserts that the Maynard court’s decision was correct, insofar as it takes account of the interaction of changing technology and shifting societal notions of privacy. The Note urges the Supreme Court to incorporate an approach similar to Maynard within its Fourth Amendment jurisprudence. The Note concludes that failure to do so will contract already-cramped notions of privacy in the digital age, and facilitate a normative shift in conceptions of privacy that may be detrimental and irreversible.

If we are not going to make culpability-based distinctions in these cases at the guilt stage, then we ought to do so at sentencing, reserving the most severe sentences for those felony-murderers who actually intended to kill.  Some states do indeed recognize this distinction for sentencing purposes, but others do not.  For those in the latter category, the Eighth Amendment might conceivably provide some protection for relatively low-culpability felony-murderers.  The Supreme Court seemed to be moving in this direction in Enmund v. Florida, 458 U.S. 782 (1982), but then in Tison v. Arizona, 481 U.S. 137 (1987), essentially limited Enmund to felony-murderers who lacked any culpability as to the killing and were not even physically present at the time it occurred.

With the Enmund/Tison line of decisions in mind, I thought it quite interesting that the Supreme Court granted cert. last month in two new Eighth Amendment cases presenting contrasting fact patterns that might provide a good platform for further regulation of felony-murder sentencing.

The cases both involve fourteen-year-old murderers sentenced to life without parole.  In Graham v. Florida, 130 S. Ct. 2011 (2010), the Court banned LWOP for juveniles convicted of nonhomicide offenses.  In the two new cases, Miller and Jackson, the Court will consider whether to preclude LWOP sentences for very young juveniles convicted of murder.  The Court might simply ban (or accept) LWOP for fourteen-year-olds on a categorical basis, but the two cases also permit (perhaps even invite) the drawing of distinctions between relatively high- and low-culpability defendants.  Where Miller seemingly had an intent to kill, and did so in a particularly brutal fashion, Jackson’s role was quite different:

He was walking with an older cousin and friend, Travis Booker and Derrick Shields, through the Chickasaw Courts housing project in Blytheville when the boys began discussing the idea of robbing the Movie Magic video store. On the way to Movie Magic, Jackson became aware of the fact that Shields was carrying a sawed-off .410 gauge shotgun in his coat sleeve. When they arrived at the store, Shields and Booker went in, but Jackson elected to remain outside by the door. Shields pointed the shot gun at the video clerk, Laurie Troup, and demanded that she “give up the money.” Troup told Shields that she did not have any money. A few moments later, Jackson went inside. Shields demanded that Troup give up the money five or six more times, and each time she refused. After Troup mentioned something about calling the police, Shields shot her in the face.

Jackson v. Norris,  2011 Ark. 49 (Danielson, J., dissenting).  If the Court were to grant Jackson relief, but not Miller, on the ground that the one was less culpable than the other, that holding might have some interesting implications for Tison.  Although Tison deals with adult felony-murderers sentenced to death, not juveniles sentenced to LWOP, Graham demonstrates that the line between the death penalty and LWOP jurisprudence is not nearly so impermeable as it once seeemed.

Whatever happens in the JLWOP cases, a new article by Joseph Trigilio and Tracy Casadio (“Executing Those Who Do Not Kill: A Categorical Approach to Proportional Sentencing,” 48 Am. Crim. L. Rev. 1371 (2011)) makes a strong argument that the Court ought to revisit Tison in light of its more recent Eighth Amendment decisions.  I think that Trigilio and Casadio are especially persuasive in showing that the “objective” prong of the Eighth Amendment analysis in Tison would have to be handled quite differently today.

This is in part because the way the Court performs the objective analysis has changed, and in part because several states have modified their laws since 1987.  You can read Trigilio and Casadio for the details (1400-01), but their bottom-line assessment is this: where theTison Court found that only about one-third of jurisdictions required an intent to kill in order to impose the death penalty on a non-triggerman, the Court would today find that about three-quarters of jurisdictions rule out death in those circumstances, which might be enough to conclude that there is a national consensus against it.  Trigilio and Casadio also note a number of other “objective” factors that would provide additional support for overturning Tison, such as the direction of change in state laws.

As to the subjective prong, Trigilio and Casadio observe that the Court’s cases since Atkins v. Virginia, 536 U.S. 304 (2002), have emphasized two considerations:

First, a categorical approach is utilized to limit juror discretion that creates an intolerably high risk of an unwarranted death sentence.  Second, a focus on the penological goals of retribution and deterrence places culpability at the center of the Court’s subjective analysis.  (1406-07)

On the first consideration, Trigilio and Casadio point out (correctly, I think) that an intent requirement would work better as a categorical rule than the conceptually uncertain Tison framework.  I’m not quite so convinced, however, by their claim that “[j]urors rendering judgment on felony-murder accomplices are highly likely to feel the need for retribution for a killing that occurred in the course of a rape, robbery, or kidnapping, and to impute that need onto the non-triggerman defendant regardless of his participation in the actual killing.”  (1408)  Indeed, the claim seems somewhat belied by the data they present in their objective analysis regarding how rare it is in practice for non-triggermen lacking intent actually to be executed.  (1404)

I think they are stronger ground, though, in arguing that the Court has recently been more insistent that the death penalty be reserved for the worst of the worst from a culpability standpoint, and that the non-triggerman lacking an intent to kill does not belong in the “worst of the worst” category.

The most common justification for good time is probably that it makes the job of prison administrators easier by giving them an additional set of incentives and sanctions to hold over inmates. Critics question, however, whether the potential loss of good time really does add anything to the deterrent effect of much more immediate sanctions, such as disciplinary segregation. Critics also object that the loss of good time — functionally an extension of the prison term — is not a just and proportionate response to rules violations that may be relatively technical and harmless and that need not be proven through formal trial-type proceedings.

In the paper, I argue that good time can thought of and justified in a different light. In essence, I suggest that good conduct in prison can be conceptualized as a form of partial atonement for the underlying crime. If seen in this way, good-time credits can be justified as a way of recognizing atonement, which seems to me an appropriate objective for the criminal-justice system.

Cross posted at Life Sentences.

Trademark law grants trademark owners the right to prevent third parties from using identical or similar signs to identify confusingly similar products in the market. Nevertheless, once a trademark owner has introduced into the market a product, or a batch of products, these rights are considered exhausted with respect to those products, and the trademark owner can no longer rely on trademark rights to control the products‘ future circulation. . . . [F]ierce disputes have characterized the application of this principle in the context of international trade with respect to the parallel imports of gray market goods—i.e., genuine (originally manufactured) products, which are imported into a country from unauthorized third party importers after their first authorized sale by trademark owners in another part of the world.

In the article, Irene considers how the “first sale” issue has been addressed in North American and European trade law.  The abstract to her paper appears after the jump.

This Article explores the intricate relationship between the exercise of trademark rights and the free movement of goods in the marketplace, and considers the effectiveness and the limitations of the principle of trademark first sale (also known as trademark exhaustion) in promoting the free movement of goods across international borders, notably across members of free trade areas. In particular, this Article examines the application of the principle of trademark first sale and the resulting process of market integration that has characterized to date the members of NAFTA and the European Union. Based upon this comparison, this Article argues that the creation of an effective system of free movement of goods in free trade areas requires, at a minimum, the adoption of uniform national rules providing for the exhaustion of national trademark rights with respect to products lawfully distributed worldwide or, at least, in the territory of all members of those areas. This Article highlights, however, that effective market integration across free trade areas may be jeopardized when corporations can use material differences in product quality to control product distribution and prevent the free movement of goods even when members of these areas nominally permit the importation of products lawfully distributed internationally or, at least, in the territory of other members. Following the analysis of the approaches adopted by NAFTA and the European Union, this Article stresses that the convergence of national standards, the mutual recognition of product characteristics, or the acceptance into national markets of materially different products from other members carrying appropriate labels disclosing these differences can nonetheless overcome these barriers. Ultimately, this Article concludes that invoking trademark protection to segment the market against the parallel trade of genuine goods not only undermines the purpose of free trade areas; it also goes against the general scope of trademark protection, which protects consumers against confusion and trademark owners against illegitimate acts that could take unfair advantage of, or damage the reputation of, the marks, and does not include the prohibition of the resale of genuine goods that trademark owners themselves have introduced into the market, even if in the territory of another member of a free trade area.

MELMS V. PABST BREWING CO. AND THE DOCTRINE OF WASTE IN AMERICAN PROPERTY LAW

Thomas W. Merrill ………………………………………………………………………… 1055

COMMENT ON MERRILL ON THE LAW OF WASTE

Richard A. Posner …………………………………………………………………………. 1095

CONTRACT AND PROCEDURE

Christopher Drahozal & Peter Rutledge ………………………………….. 1103

WISCONSIN’S ANTITRUST LAW: OUTSOURCING THE LEGAL STANDARD

Michael P. Waxman ………………………………………………………………………. 1173

BROKEN SYSTEMS, BROKEN DUTIES: A NEW THEORY FOR SCHOOL FINANCE LITIGATION

Aaron Y. Tang ………………………………………………………………………………. 1195

BARROCK LECTURE: HOW SHOULD WE PUNISH MURDER?

Jonathan Simon …………………………………………………………………………….. 1241

SEC V. DOROZHKO’S AFFIRMATIVE MISREPRESENTATION THEORY OF INSIDER TRADING: AN IMPROPER MEANS TO A PROPER END

Elizabeth A. Odian ……………………………………………………………………….. 1313

THE AMERICAN DREAM DEFERRED: FAMILY SEPARATION AND IMMIGRANT VISA ADJUDICATIONS AT U.S. CONSULATES ABROAD

Cain W. Oulahan …………………………………………………………………………… 1351

GENDER AND JUDGING

Diane S. Sykes ………………………………………………………………………………. 1381

On Wednesday of this week, the world lost several visionaries. Rev. Fred Shuttlesworth, a prominent civil rights activist, and Steve Jobs, co-founder of Apple, Inc. both died.  But there was a third visionary whose light went out on Wednesday:  Derrick Bell.

Bell was a visiting professor of law at New York University School of Law when he died. He is considered a pioneer of critical race theory, which theory examines issues of race, racism, and power in law and legal institutions.  But while he had spent most of his life as an academic, his roots – and his defining experiences – were in civil rights. Bell graduated with an LL.B. from the University of Pittsburgh School of Law in 1957 and, after a short stint in the Civil Rights Division at the U.S. Justice Department, went to work for the NAACP Legal Defense Fund, working closely with Thurgood Marshall, who recruited him.  According to Bell’s biography on TheHistoryMakers, while he was at the NAACP Legal Defense Fund, he oversaw more than 300 school desegregation cases.  His experience with those desegregation cases factored significantly in his developing interest convergence theory, which he wrote about in law review articles as well as in the 2004 book Silent Covenants:  Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform.

I read Silent Covenants last year.  It is an amazing text that directly challenges the iconic U.S. Supreme Court decision in Brown v. Board of Education.  While that decision seems to remain what Bell called “the Holy Grail of racial justice,” Bell found the decision to be less about racial equality and more about national security.  Claims Bell, in the aftermath of World War II and rise of the Cold War, America found itself in a bit of what one might call a public relations bind.  It billed itself as a world leader in democracy, yet at that time de facto if not de jure segregation prevailed across the country. African Americans who enlisted in the armed services to fight (in their segregated units) Hitler and fascism in the name of freedom and justice returned home to find that they still were not allowed to eat at the same lunch counters or stay in the same hotels or go to the same schools as the whites for whom they had risked their lives.  This discrepancy did not go unnoticed by the Soviets, whom some feared would use America’s racial inequality to recruit members for the communist party.  So when the NAACP brought the Brown case to the U.S. Supreme Court, the timing was right to make some changes in America’s racial policies.

Said Bell in Silent Covenants, “Black rights are recognized and protected when and only so long as policymakers perceive that such advances will further interests that are their primary concern.”  Thus Bell introduces his interest convergence covenants, events in history where black rights were recognized but the underlying reasons were not recognition of the rights for their own sake but recognition because such rights served broader interests.

In his view, Brown should not have dismantled Plessy v. Ferguson as it did.  In fact, Bell claims, the Court should have upheld Plessy and actually enforced the “equal” part of “separate but equal.”  In this way, Bell believed most school districts would either be able to truly equalize their segregated schools or degregate on their own because they would not be able to afford to equalize.

It was typical of Bell to find that race mattered in a whole host of ways in a whole host of situations.  In fact, one of the criticisms levied against him was that he was often too quick to “play the race card.”  But he probably isn’t wrong.  Perhaps Bell saw racism everywhere because it is everywhere, although sometimes it manifests only in the most subtle of ways.

Thank you, Professor Bell, for your contributions to legal theory.  You will be missed.

RIP Derrick Bell, Pioneer of Critical Race Theory

Weisberg on Dan Kahan (our 2008 Boden Lecturer)

Weisberg on restorative justice

Weisberg on proposed reforms for the sentencing provisions of the Model Penal Code

Is this a good thing?  In the law review literature, there are plenty of calls for the creation of this or that new specialized court.  Certainly, specialization leads to quicker and more efficient decisionmaking.  But should we expect the specialized judge also to render decisions that are substantively better?

This is the question that lies at the heart of Chad Oldfather’s new article, “Judging, Expertise, and the Rule of Law.” 

Chad’s analysis rests on the burgeoning psychological literature on expertise.  His conclusion is that the claims about the ability of specialist judges to develop and successfully use a higher level of substantive expertise are probably much overstated.  Chad’s analysis has many nuances.  To highlight just one dimension that I found especially intriguing, he considers the likelihood that specialist judges are better able to make accurate predictions regarding the consequences of ruling one way or another.  He suggests that the answer depends on the certain personal qualities of the judge:

A final body of research that bears consideration is Philip Tetlock’s work on expert political judgment.  Tetlock’s project was, in effect, to attempt to isolate the components of “good political judgment,” and he did so primarily by getting experts to make predictions about future states of the world and then, over time, assessing whether those predictions came true. This is, as he readily acknowledges, a slippery task, in large part because disagreements turn on more than ascertainable factual claims. Instead, they involve “hard-to-refute counterfactual claims about what would have happened if we had taken different policy paths and on impossible-to-refute moral claims about the types of people we should aspire to be—all claims that partisans can use to fortify their positions against falsification.” While Tetlock acknowledges the impossibility of eradicating all the subjectivity from the inquiry, he maintains that it is possible to assess them by reference both to the correspondence between experts’ predictions and reality and the coherence of the processes by which they approach the task.

Tetlock concluded that, overall, experts’ judgment was not good. As he puts it, “Humanity barely bests the chimp.”  “[V]ariation in forecasting skill is roughly normally distributed, with means hovering not much above chance and slightly below case-specific extrapolation algorithms.”  Tetlock found that demographic and life-history factors bore very little relationship to forecasting success. “It made virtually no difference whether participants had doctorates, whether they were economists, political scientists, journalists, or historians, whether they had policy experience or access to classified information, or whether they had logged many or few years of experience in their chosen line of work.”  Nor did ideology or other factors relating to worldview or disposition correlate with forecasting success.

What did matter, Tetlock found, was the process by which experts approached the predictive task. Drawing on Isaiah Berlin’s famous fox-hedgehog distinction, he found a “dimension [that] did what none of the measures of professional background could do: distinguish observers of the contemporary scene with superior forecasting records, across regions, topics, and time.”

“Low scorers look like hedgehogs: thinkers who ‘know one big thing,’ aggressively extend the explanatory reach of that one big thing into new domains, display bristly impatience with those who ‘do not get it,’ and express considerable confidence that they are already pretty proficient forecasters, at least in the long term. High scorers look like foxes: thinkers who know many small things (tricks of their trade), are skeptical of grand schemes, see explanation and prediction not as deductive exercises but rather as exercises in flexible ‘ad hocery’ that require stitching together diverse sources of information, and are rather diffident about their own forecasting prowess, and … rather dubious that the cloudlike subject of politics can be the object of clocklike science.”

Looking beyond the simple fox-hedgehog divide, Tetlock found that “hedgehog extremists making long-term predictions in their domains of expertise” were the worst performers.  The best were “foxes making short-term predictions within their domains of expertise.”  In all, he concludes, “the performance gap between foxes and hedgehogs … is statistically reliable, but the size of the gap is moderated by at least three other variables: extremism, expertise, and forecasting horizon.”

Tetlock reasons that these results are consistent with other research on cognition. Hedgehogs, he suggests, “bear a strong family resemblance to high scorers on personality scales designed to measure needs for closure and structure—the type of people who have been shown in experimental research to be more likely to trivialize evidence that undercuts their preconceptions and to embrace evidence that reinforces their preconceptions.”  Hedgehog experts perform especially poorly because their expertise better equips them to discount contrary evidence as well as to characterize evidence as bolstering their beliefs. Extremism magnifies the effect.  Meanwhile, foxes are more self-critical and more inclined to anticipate criticism from others, and consequently more likely to give due consideration to all information that bears on their position.  For foxes, expertise pays dividends, since it enhances their ability to assess all information.  (41-43)

In addition to questioning the advantages claimed for a specialized judiciary, Chad also discusses the case for generalists.  He identifies rule-of-law values as the most important justification for our generalist traditions:

The strongest arguments for a generalist judiciary seem to require the acceptance of a certain conception of law, and in turn of the judicial role. Stated simply, the conception of law that seems to underlie the generalist judiciary is one in which law strives to be something of a common language. There are at least two ideas at work here. One is that the expertise relevant to judging exists at a similarly broad level. On that view, the key is not expertise in or familiarity with the particulars of, say, tax law that matters, but rather an advanced ability to deploy the tools of legal analysis. The second idea extends beyond the act of judging to the impact of that act on the relationship between the law and those who are governed by it. It goes beyond the notion that we have a government of laws and not of men to the suggestion that we must have a government of laws that can be understood and adhered to by more-or-less ordinary people. The generalist judiciary can further these goals not only by preventing the sort of balkanization that is likely to occur if separate judiciaries have responsibility for their own areas of law, but also by serving as a more general barrier to needless technicality and complexity in the law. The presence of the generalist effectively requires specialist lawyers to translate their arguments into the common language of the generalist, which in turn facilitates the generality of law. This barrier provided by the generalist is hardly impermeable. It is not difficult to find examples of needless technicality and complexity in the law created by generalists. Nonetheless, one can easily imagine generalism serving as an antidote to some of the more severe pathologies that might afflict the law under a regime based more on specialization.  (48-49)

Chad’s very fox-like article is forthcoming in the Washington University Law Review.

What I found most intriguing about the results was the importance of “internal pressure” as a motivation for confessing. This refers to feelings of guilt about the crime, a desire to “get it off one’s chest,” and a belief in the importance of honesty. Among the “true confessors,” guilt/honesty-type answers were the most common when the interviewer asked the open-ended question, “Tell me in your own words, why you confessed?” (403) (Not surprisingly, almost none of the ”false confessors” cited such reasons.) By contrast, “external pressure” (e.g., bullying by the police) was rarely cited by either true or false confessors. (The most common reason given for false confessions was a desire to protect someone else.)

Similarly, when subjects were asked to rate various suggested motivations on a seven-point scale (1 was “not at all” a reason to confess, and 7 was “very much so”), the true confessors rated guilty feelings as among the more important, with an average score of 3.52. (407) 

This was higher, for instance, than the scores for such alternative explanations as fear of the police, a desire to protect someone else, and the expectation of a lighter sentence. The highest-rated motivation for true confessions was “because [I] saw no point in denying it at the time” (5.59).

To the extent that subjects confessed in the hope of obtaining some release from their feelings of guilt, it seems that this actually worked to some extent. When asked ”did you experience a sense of relief after confessing,” true confessors gave an average response of 4.19 (7=very much so). When asked “are you now pleased that you confessed,” they gave an average response of 4.68.

I think the results are interesting for what they suggest about the internal moral life of many individuals in a population that is often assumed to be deeply and uniformly depraved, and responsive only to force and threats. (To be sure, though, when specifically prompted, many subjects did indicate that police bullying played a role in their confessions, giving that an average rating of 4.21.)

Of course, we can’t read too much into this one study, which relied on after-the-fact self-reports by a small sample of mentally ill people. But the finding that internal pressures play an important role is consistent with the one earlier study of motivations for true confessions. (395) It also helps to make sense of a remarkably common behavior that might otherwise appear wholly irrational – a range of previous studies have found confession rates of about 65 percent. (395) Defense lawyers are often frustrated by their clients’ loose lips, but at least some clients may feel strong, durable feelings of psychological release that partly or wholly counterbalance the negative legal ramifications of a confession.

Cross posted at Life Sentences Blog.

What explains the different legal treatment of the two types of transracial adoption? David suggests two answers. The “formal” answer “involves the unique status of Native Americans under the law of the United States,” which regards tribes as sovereign nations of sorts. But a “more fundamental explanation” may have something to do with the unique force of racist attitudes towards African Americans and related negative beliefs regarding their parenting abilities.

David’s paper is entitled “Transracial Adoption: The Adoption of Native American and African American Children by Whites.”

Paul considers a variety of policy responses to some of these challenges, but it appears there are no easy fixes.

Paul’s paper, entitled “The Forgotten Employee Benefit Crisis: Multiemployer Benefit Plans on the Brink,” will appear in the Cornell Journal of Law and Public Policy.

• Mark Lemley’s Nies Lecture, “Can the Patent Office Be Fixed?”
• Ysolde Gendreau’s lecture on copyright reform in Canada, “Canada and the Three-Step Test: A Step in Which Direction?”
• Dalila Hoover’s article, “Coercion Will Not Protect Trademark Owners in China, but an Understanding of China’s Culture Will: A Lesson the United States Has to Learn”
• Benedetta Ubertazzi’s article, “Intellectual Property Rights and Exclusive (Subject Matter) Jurisdiction: Between Private and Public International Law”
• Brian Jacobs’ comment on intellectual property as security for financing
• Colin Shanahan’s comment on the Anti-Counterfeiting Trade Agreement
• Syvil Shelbourne’s comment on rule of reason patent misuse analysis
• Nicholas Smith’s comment on Medimmune v. Genentech

Abstracts and links for full-text downloads are here.  Congratulations to the editors for bringing Volume 15 to a successful conclusion!

Paul Secunda has been exploring the implications of cultural cognition theory for law and employment law. An initial foray is here, and the latest entry in the series is here. The new paper is entitled “Psychological Realism in Labor and Employment Law.”

Paul is concerned that culturally driven fact-finding may undercut the perceived legitimacy of the courts. In the new paper, he suggests a variety of potential reforms for further consideration that might address the cultural cognition and legitimacy concerns. Among the more provocative is a proposal for specialized employment-law courts or judges, analogous to our specialized bankruptcy courts.

The abstract of the new paper appears after the jump.

Facts matter, especially in labor and employment law cases. But not in the way that labor scholars of a generation ago understood. Those scholars correctly posited that judicial perception of facts reflected previously-held values and assumptions rather than record evidence. Yet crucially, those scholars did not describe the psychological mechanism by which judges’ values came to shape facts in labor and employment law cases. Understanding the psychological mechanism by which judicial values shape legal decisions is a necessary first step to set up a framework to counteract the impact of cognitive illiberalism, a form of cognitive bias that impacts society writ large, in such decisions.

Psychological realism in labor and employment law explains that judges in these cases are generally not self-conscious partisans but rather decisionmakers who seek most of the time to get the law right without being ideologically committed to any prior legal or political view. Yet, values matter because judges, as human beings, cannot help but to act based on their culturally-informed perceptions of legally consequential facts.

By understanding the mechanism by which values influence decisionmakers in labor and employment law cases, it is possible to consider ways to reduce needless cultural conflict over, and discontent with, the law. To this end, this article considers a spectrum of judicial reform proposals which seek to help judges address the increasing complexity of labor and employment law cases in a manner which would also reduce the incidents of impact of cognitive illiberalism in American society.

That is the question explored in a new paper on SSRN by Chad Oldfather and Todd Peppers.  Although other scholars have grappled with the general problem of disability on the Supreme Court, Oldfather and Peppers identify two reasons why the problem is especially acute when it comes to the Chief.  First, it is much more common for Chief Justices than Associate Justices to serve until the time of death or a major disability.  Only four of the past sixteen Chief Justices have retired while in good health.  (Oldfather and Peppers use the decline and passing of the late William Rehnquist as a case study of the more typical pattern for Chief Justices.)  Second, the Chief is not merely one of nine adjudicators on the Court, but also serves as the administrative head of the entire federal judiciary.  For that reason, the incapacitation of the Chief Justice may do much more damage than the incapacitation of an Associate.

Oldfather and Peppers do not advocate for a particular solution, but they do urge consideration of various potential reforms, such as the imposition of a term limit on the Chief Justice.

Entitled “Till Death Do Us Part: Chief Justices and the United States Supreme Court,” their paper will be published in the Marquette Law Review.

Anderson and Miller point to the sports facililty lease agreement as the key legal document by which communities attempt to secure long-term commitments from their teams.  However, as the City of Seattle discovered, there are significant legal and practical impediments to enforcing these commitments.  It may be especially difficult to obtain the remedy of specific performance, i.e., a court order requiring a recalcitrant team to continue playing in a city it wishes to desert.

Anderson and Miller helpfully survey a range of non-relocation agreements that have been negotiated between different cities and sports franchises.  They identify the agreement between Bexar County, Texas, and the San Antonio Spurs as a model of a strong agreement that seems much better designed than the Seattle contract to keep a franchise in its city over the long run.  Among other things, the contract includes a liquidated damages clause that starts at $250,000,000 and declines to $106,000,000 over the term of the lease.

The recent spate of high profile efforts by state governors to roll back public employee pension rights in light of recent budgetary challenges has shone the light directly on the importance to public employees of the Contracts Clause provisions of the federal and state constitutions. Using as an example the controversial budget repair bill in Wisconsin and the application of the bill’s pension provisions to Milwaukee City employee pension rights, this article has sought to show how, under certain specified circumstances, such legislative attempts may be constitutionally impermissible if such laws substantially impair employee contracts with the state without the necessary legal justification.

Although such Contracts Clause litigation might be successful in a suit brought by the City of Milwaukee on behalf of its employees, it is unclear w.hether such arguments will be successful in other parts of Wisconsin or in other states. As the examination of pending pension litigation in other states underscores, there will also be different types of state legislation that may run afoul of public pension rights under the particular provisions of a state’s pension laws. Because of the lack of legal uniformity in public pension regulation from one state to the next, the only possible way to determine whether state curtailment of public employee pension rights will be constitutional is by undertaking an in-depth legal analysis of the applicable pension laws, regulations, ordinances, court opinions, and prior case settlements.

Entitled “Constitutional Contracts Clause Challenges in Public Pension Litigation,” Paul’s paper will appear in the Hofstra Labor and Employment Law Journal.

A new study in The Marquette Law Review found that the justices had used dictionaries to define 295 words or phrases in 225 opinions in the 10 years starting in October 2000. That is roughly in line with the previous decade but an explosion by historical standards. In the 1960s, for instance, the court relied on dictionaries to define 23 terms in 16 opinions.

Liptak notes various objections to the practice.  For instance, dictionaries were not written for the purpose of supplying precise legal definitions, and the variety of different meanings suggested by the many available dictionaries creates opportunities for “cherry picking.”  He adds,

The authors of the Marquette study, Jeffrey L. Kirchmeier and Samuel A. Thumma, said the justices had never really said precisely what dictionary definitions were doing in legal opinions. They urged the justices to explain “when and how dictionaries should be used, how a specific dictionary should be chosen and how to use a dictionary for interpretation.”

This post is a summary of a full-length piece that the author is currently working on with Marquette Law School Professor Chad Oldfather.  The ideas expressed in this post represent a work in progress, and portions of the argument are likely to undergo substantial revisions before the final piece is completed.  Notwithstanding the collaboration with Professor Oldfather, any errors in this piece, either substantive or grammatical, are solely the author’s.

Until recently, the Supreme Court’s Dormant Commerce Clause doctrine has been applied to invalidate states’ attempts to implement legislation that discriminates against out-of-state interests, on the theory that Congress’s affirmative powers under the Commerce Clause necessarily imply a limit on states’ abilities to enact laws that would affect interstate commerce.  Recently, the Court has pulled back slightly from its formerly aggressive Dormant Commerce Clause jurisprudence, and there has been a revitalization of federalist principles by which the Court has sought to recognize greater powers in the states to direct local governmental activities.  This recent trend has found specific support in a number of the Court’s jurisprudential developments, including its broad interpretation of the Eleventh Amendment and its attempts at narrowing federal powers under the Commerce Clause.  However, in light of many of the other developments in federal-state relations, a clearer, more textually defensible basis for a reinvigoration of federalist principles may be found in the Republican Guarantee Clause of Article IV.

This theory is based on the idea that, the Constitution’s guarantee of republicanism provides substantive protections of the rights of the people, as well as the states, to enact legislation intended to further legitimate local interests, regardless of the alleged effect on interstate commerce.  Thus, where Congress has not enacted contrary preemptive legislation, the federal courts should refrain from imposing judicial constraints on the peoples’ ability to protect themselves as they elect to do so through the representative process.  The republican guarantee, by way of the existing political question doctrine, might be interpreted as (1) a jurisdictional basis upon which state legislatures may enact facially discriminatory legislation, as long as such laws do not infringe on other, textually protected individual rights; and (2) a check on the courts’ ability to invalidate such rightfully enacted state laws.

For current purposes, this paradigm could provide support for the recent burgeoning in local food movements.  These movements are characterized by state and municipal efforts to encourage, and even subsidize, local agriculture and food production.  As scientific proof and support mount in favor of maintaining local food systems, states and local communities have taken legislative steps to protect local producers and consumers.  But, these protective laws could face challenges based on the idea that facially discriminatory laws intended to bolster localism violate the Dormant Commerce Clause doctrine.

However, such laws, which reaffirm strong traditions of agrarianism reaching back to the founding of this nation, are at the heart of any republican system of government.  The views of many members of the founding generation support a model of government based on the ability of local food producers and consumers to ensure the continued vitality of their communities through protection of local food systems.  Thus, instead of these laws being invalidated on Dormant Commerce Clause grounds (or even being subject to a Dormant Commerce Clause analysis), attempts at invalidation of local food decisions could be precluded on the theory that, whatever other substantive protections are included in a theory of republicanism, protecting local agrarian traditions is at the heart of the republicanism guaranteed by Article IV.

Fundamentally, the rationale for invalidating such laws under the Dormant Commerce Clause is that such regulation is the province of the national government, and that the economic unification of the States will ensure the success of the Union; that “the peoples of the several states must sink or swim together.”  Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 523 (1935).  In the context of interstate commerce in food products, however, that rationale was apparently based on a presumption of fungibility of various goods; for example, that milk from one state had the same social, economic, and health benefits as milk from any other state.  But as commerce and scientific knowledge have expanded, scientists, farmers, and food advocates, among others, are pushing back against the notions that all food is equal, and that terroir does not play a role in producing quality, highly nutritious, sustainable food.

Instead, these direct and active participants in our food systems are suggesting that food grown and produced in a local area—a “foodshed”—provides not only greater benefits to the local human social and economic communities, but also greater health benefits, as well as fewer detrimental environmental impacts caused by global food production and transportation.  Thus, these advocates suggest that when it comes to food, perhaps the continued vitality of the Union will be better served by each locality’s reliance on local food, thereby encouraging greater sustainability on the part of each of the Union’s component parts.

To this end, a number of states and communities have enacted laws requiring locally sourced food for various purposes, often in the form of purchasing requirements for local governmental entities, e.g., schools, governmental offices, or state prisons.  Thus, these entities may be required to buy produce, meats, or other food products from local producers, to the exclusion of those out of state.  Although these measures evidently serve numerous valid local interests, an argument can be made that these types of laws are directly discriminatory against out-of-state food producers and that, therefore, the laws run afoul of the Dormant Commerce Clause doctrine’s nearly per se prohibition on laws having such discriminatory effects.  The doctrine has been interpreted to include exceptions for some facially discriminatory laws, when those laws serve otherwise legitimate state interests and when the ends cannot be reached by any other reasonable means.

Resorting to these exceptions under the Dormant Commerce Clause, however, seems to misconstrue the rights that the Constitution affords the people to govern.  This view of the federal government’s powers under the Commerce Clause essentially provides that the people’s powers are limited in the first instance by judicial fiat, with certain popularly ordained actions being acceptable only by the permission of the courts under their implied powers to control commerce.  Instead, the people’s rights to enact locally beneficial laws, where those laws are not prohibited by an express constitutional restriction or preempted by congressional enactments, would seem to be protected by the Ninth or Tenth Amendments; these amendments, however, have been interpreted as affording no such rights.  Indeed, the Court’s attempt to reinvigorate the rights of the people under the Tenth Amendment in National League of Cities v. Usery was quickly overruled in Garcia v. San Antonio Metropolitan Transit Authority, which rejected the notion that the Court could ever ascertain any reliable defining characteristics of state governments that must be protected from federal regulation.

After its impugning of Usery’s “traditional governmental functions” test for determining which state activities should be protected from federal interference, the Court has since sought to revitalize principles of federalism and the powers of the states to self-govern in the face of seemingly ubiquitous federal power.  This trend has included some pulling back from the near-per-se invalidation of discriminatory state laws under the Dormant Commerce Clause, most recently in United Haulers Ass’n v. Oneida–Herkimer Solid Waste Management Authority and Department of Revenue of Kentucky v. Davis.  These cases have essentially recognized a governmental exception to Dormant Commerce Clause restrictions, allowing discriminatory treatment when the legislation at issue serves “traditional public functions.”

With the Court’s pullback from previous Dormant Commerce Clause jurisprudence, and especially due to the theories upon which the Court has allowed discriminatory legislation, there exists another, more textually defensible rationale for allowing the enactment of such locally beneficial laws.  That rationale is found in Article IV’s Republican Guarantee Clause, which provides that “The United States shall guarantee to every State in this Union a Republican Form of Government.”

Long relegated to “constitutional desuetude,” the Guarantee Clause has experienced a sort of slow revival over the past half century, beginning with the Court’s allowance in Baker v. Carr that cases under the Guarantee Clause were not necessarily nonjusticiable, as had been assumed under the Court’s prior precedents throughout the preceding century.  During that pre-Baker period, the Court had determined that any challenge based on the Guarantee Clause presented a nonjusticiable political question whose resolution was dedicated exclusively to the political branches.  After Baker’s restatement of the political question test, courts determining whether to allow a Guarantee Clause claim to go forward look to whether the dispute can be resolved judicially without infringing on the powers and duties of the other federal political branches.

The political question doctrine and the Guarantee Clause, generally, also give rise to another, converse implication of the federal government’s potential authority under the Guarantee Clause.  This implication is that the affirmative powers granted to the federal sovereign concomitantly require that that government respect the authority of the states, and of the people, to engaged in fundamental republican activities without interference by the federal government where there does not exist a clear constitutional basis for doing so.  Under this view, the republican guarantee would thus serve as a limit on the federal judiciary’s attempts to exercise nontextual, implied powers under the Commerce Clause.  Where the federal government has not acted according to its express Commerce Clause authority, the Republican Guarantee requires that federal courts refrain from invalidating state legislation unless there exists a textually demonstrable basis upon which the courts may exercise their remedial constitutional authority, such as that found under the Equal Protection or Due Process Clauses or the First Amendment.

This limitation on the federal government is based on a reading of Article IV’s provision that the United States “shall guarantee” states’ republican governments in such a way as to give fuller meaning to that right in the federal government as also bestowing obligations grounded in principles of federalism.  Hence, the corollary to the oft-stated affirmative powers of the federal government is that “shall” does not only mean that the federal government may act, but that it must also refrain from acting when doing so would interfere with the states’ development, maintenance, and exercise of local republican government.  The critical determination, then, is discerning those governmental actions that fall within the concept of republicanism that is guaranteed to the states and the people.

The Court has provided some guidance in this area, although the entire scope of rights guaranteed within the body of republicanism remains indeterminate.  In New York v. United States, for example, the Court discussed a challenge based in part on the Guarantee Clause, and concluded that even if the Guarantee Clause provided limits on what actions the federal government may take vis à vis the states, the incentives at issue in that case did not violate the Clause’s protections.  Also, in Gregory v. Ashcroft, the Court explicitly held that the Guarantee Clause constrains the federal government’s ability to interfere with the qualifications established for state governmental officials.  The Court made clear that, although Congress may have the power to manipulate such qualifications under its Commerce Clause power, any attempts to exercise that power must be “unmistakably clear,” and that the federal courts must not arrogate to themselves powers to invalidate such fundamental acts of a state government.

The cases adjudicating grievances under the Guarantee Clause illustrate three points.  First, after over one hundred years of having been read to be essentially a dead letter of the Constitution, the guarantee is apparently alive and well.  Second, these cases show that there are in fact substantive elements of the guarantee that the federal courts can recognize, and that these elements can provide a framework of the types of state governmental activities that must be free from federal interference, absent an “unmistakably clear” constitutional or statutory basis.  Third, the Court’s adjudication of these cases shows that the Guarantee Clause could provide a jurisdictional basis upon which states might enact legislation in furtherance of republican governance, much like Congress relies on the Commerce Clause as the jurisdictional basis by which it legislates.

Thus, although the precise content of the republican guarantee is yet undefined, a more robust and textually based interpretation of the Guarantee Clause seems to support broad measures aimed at protecting local agrarian traditions.  Thus, local laws protecting and promoting local food systems should be protected from federal judicial invalidation by the guarantee that the people of every state shall be free to exercise a republican government.  In comparison to the Court’s decision in Gregory v. Ashcroft, for example, if a state’s establishment of qualifications for its officers is within the guarantee, so too must be the people’s ability, through the republican process, to decide how the populace will be fed and, similarly, how the land of the state will be used.  Therefore, under this view of the Guarantee Clause, unless Congress issues a contrary directive governing local food, the republican guarantee would prohibit the federal courts from infringing on the people’s right to engage in an apparently fundamental component of republicanism: utilizing the republican legislative process to protect and promote the production and consumption of local foods.

Here are three insights I picked up from Stuntz that have been particularly important to my own work:

• You can be skeptical of the Warren Court rights revolution without having a vicious, or even indifferent, attitude toward the well-being of criminal defendants — indeed, in the real world, new rights may end up harming defendants more than helping them.
• In a system of high sentences, routine plea-bargaining, and judicial unwillingness to second-guess prosecutorial decisions, the preferences of prosecutors may be more important than the legislatively enacted criminal code in determining who is convicted of what and how they are punished.
• Public demand for, and legislative supply of, overbroad criminal laws does not necessarily mean that anyone actually wants these laws to be applied in a literal or indiscriminate fashion; new criminal laws are adopted against a backdrop of broad prosecutorial discretion, and are perhaps best understood as a way of giving new tools to prosecutors rather than as inflexible penal mandates.

Stuntz’s most important article may be The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001).  I see this article cited all the time, and the notion that criminal-law politics are “pathological” has become almost a truism among scholars.  I would recommend the article to anyone interested in an introduction to the work of this extraordinarily creative and insightful author.

Because religious beliefs inform much of the stem-cell debate, Ed’s paper raises difficult and important questions regarding the proper role of religion in shaping federal science policy.  Ed argues that elected officials, not scientists, should ultimately make the decisions.  In order to guide the decisionmaking, he proposes two principles: “1) the federal government should be the preferred source of funding for basic medical research and 2) government funding decisions should not favor one religious perspective over another.”  Although not everyone will agree with the second principle, Ed argues that it is more consistent with the design of our constitutional system.  He writes:

The Madisonian separation of church and state is an integral part of the limited government created under the United States Constitution, and maintaining that separation is an ethical good that our elected officials must weigh along with other ethical goods such as the protection of vulnerable populations and the promotion of justice.

Andrew Taslitz responds critically to this line of thinking in a helpful new article, Police Are People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the Individualized Suspicion Judgment Right, 8 Ohio St. J. Crim. L. 7 (2010).  Taslitz first outlines the many sources of cognitive bias that seem likely to infect police suspicions in many common circumstances, particularly white police officers interacting with minorities in high-crime neighborhoods.  As even Gladwell recognized, hunches are not foolproof and can be led astray by superficial appearances and other irrelevant cues. 

(My own summary of Gladwell’s thought-provoking but mostly inconclusive book would be, “Hunches are more reliable than conscious deliberation except when they are not.”)  Taslitz then argues that robust explanation requirements for officers can help to diminish the negative effects of cognitive bias without sacrificing the power of hunches.  He concludes:

Perhaps this article’s most important points are that reviewing courts should demand serious, thorough explanations from officers, who must justify their search and seizure decisions, and courts should not also readily defer to conclusory assertions of police intuition. Although the justification requirement is already part of the legal landscape, this article suggests that a more robust version of the requirement is often desirable. That robust version must also take more seriously the command that what police must justify is particularized, not generalized, suspicion. Cognitive science thus suggests that arguments for courts giving even more deference to police search and seizure judgments than is currently true should be rejected.  (78)

One reason I find Taslitz’s analysis attractive is doubtlessly because it echoes some of my own work on sentencing.  I’ve argued in favor of rigorous explanation requirements for sentencing judges in order to diminish the effects of cognitive bias (e.g., here), and I’ve expressed much skepticism about applying the Blink model to sentencing (e.g., here).

There is at least one source of bias that Taslitz discusses that I have probably not devoted adequate attention to in the sentencing context: the fundamental attribution error.  Here is what Taslitz says:

This error is the tendency, especially in American culture, to judge an individual‘s actions as stemming from fundamental personality traits rather than from the situation in which she finds herself. Moreover, people are willing to make quick and confident judgments of a subject‘s personality trait based on a very limited data sample. They will also overgeneralize, treating one perceived negative personality trait as indicative of an overall negative personality across many criteria.

Many early judgments of this kind are based on facial expressions. If, therefore, someone in a rush believes that he has been unjustly stopped by the police, the stopee may react with an angry or irritated scowl. There is a good chance that the officer will interpret the person stopped as being unsociable, unfriendly, unsympathetic, cold, [and] forceful. These traits may lead the officer to dislike the person stopped and to suspect him of wrongdoing.  (17)

Comparable dangers seem quite likley in the sentencing context, too.  One of the great dangers of incapacitation-based approaches to sentencing is that a judge will too quickly reach the decision that a defendant is a “bad person” based on a few situation-dependent bad acts, or even just bad demeanor in the courtroom.  For that reason, if incapacitation is to be regarded as a legitimate purpose of punishment, it should be based on objective, actuarial guidelines, rather than judicial hunches about recidivism risk.

Cross posted at Life Sentences Blog.

My purpose in the article is suggest one way that indeterminate sentencing may be reconceptualized so that it fits tolerably well with at least one version of retributivism.  In essence, an indeterminate sentence is seen as a way to permit limited extensions of incarceration as a retributive response to persistent, willful violations of prison rules.  Were this approach adopted, however, it would probably require a rethinking not only of the way that parole is administered, but also the way that prisons are run.  If prisons are, in practice, little more than warehouses — places of intense exclusion that aim to provide no more than the bare necessities for physical existence — then it is not clear there is a morally satisfactory basis for retributive responses to prison rule-breaking.

The article is forthcoming in the American Criminal Law Review.  The abstract appears after the jump.

Indeterminate sentencing—that is, sentencing offenders to a range of potential imprisonment with the actual release date determined later, typically by a parole board—fell into disrepute among theorists and policymakers in the last three decades of the twentieth century.  This sentencing practice had been closely associated with the rehabilitative paradigm in criminal law, which also fell from favor in the 1970’s.  In the years that followed, most states eliminated or pared back the various devices that had been used to implement indeterminate sentencing, especially parole release.  Yet, sentencing remained indeterminate most places to varying degrees, and now parole and similar mechanisms are staging an unexpected comeback.  However, despite its perseverance and apparent resurgence, indeterminate sentencing has lacked any clear theoretical foundation since the demise of the rehabilitative paradigm.  Indeed, indeterminate sentencing is commonly thought to conflict with retributivism, the dominant approach to punishment theory today. The lack of a clear theoretical foundation has likely contributed in recent decades to the ad hoc expansion and contraction of parole in response to short-term political and fiscal pressures.

In the hope of bringing greater stability and coherence to what seems once again an increasingly important aspect of our penal practices, this Article proposes a new normative model for indeterminate sentencing that is grounded in a retributive, communicative theory of punishment.  In essence, the model conceives of delayed release within the indeterminate range as a retributive response to persistent, willful violations of prison rules.  The Article explores the implications of this model for prison and parole administration and for punishment theory.

Cross posted at PrawfsBlawg and Life Sentences Blog.

Their thesis is simply stated.  A vastly disproportionate number of federal death sentences come from counties with high minority populations that are located in districts that are heavily white overall.  Think diverse urban cores surrounded by lily-white suburbs.  Given that federal juries are typically drawn from the entire district, this means that capital trials in these districts are apt to involve minority defendants being judged by white-dominated juries.  Having minimal racial diversity on the jury means that black defendants have little protection from the unconscious racial biases that most of us carry around.  This, in turn, drives both the racial and geographic disparities in federal death sentences.

The patterns are striking. 

For instance, both federal districts in Missouri display the racial demographics that are of interest to Cohen and Smith (racially diverse urban county surrounded by heavily white suburban counties), and Missouri has returned more federal death sentences than New York, California, and Florida combined (p. 436).  In fact, Cohen and Smith contend that all eight of the districts that have returned more than two federal death sentences exhibit pronounced county-district racial disparities.

By contrast, the three districts in which it has been hardest for the feds to get a death sentence are all majority-minority: District of Columbia, Puerto Rico, and the Southern District of New York.  ”These three federal districts account for 55 of the 460 death-authorized cases but are not responsible for a single death sentence” (465).  Expanding the view to the ten districts in which it has been hardest to get a death sentence, eight have “similar demographic profiles between the federal district and the most populous county.”

Cohen and Smith have uncovered a fascinating pattern, although it surely does not tell the whole story.  What about the Eastern District of Wisconsin, for instance?  While the largest city in the District, Milwaukee, is 37 percent black, the District as a whole is only nine percent black.  This disparity would seem to put the District at considerable risk for the racial dynamics that are of concern to Cohen and Smith, but we have no death sentences.  In fact, the numbers for Milwaukee and the Eastern District of Wisconsin are almost identical to the numbers for Kansas City and the Western District of Missouri, which leads the nation in federal death sentences.

Indeed, while I haven’t cranked the numbers, I strongly suspect there are a great many other death-free districts with similar profiles to these two.  High county-district racial disparities may be necessary for federal death sentences, but I doubt they are sufficient.

Even at that, what Cohen and Smith have uncovered should heighten concerns about the role of racial bias in the administration of the federal death penalty.  For that reason, their reform proposals (especially drawing the venire for federal capital trials from the county of the offense, as federal law mandated prior to the Civil War) deserve attention.

I wonder, too, if the race-geography dynamics they have uncovered are apparent more broadly in federal criminal trials.  If racial bias is a problem in capital trials in some districts, why would it not also be a problem in noncapital trials?  As federal law enforcement has become more oriented to responding to street crime, which is really a local problem, it makes sense for federal juries to be drawn on a more local basis, too.

Cross posted at Life Sentences Blog.

I believe the Board will likely not prohibit all captive audience meetings as I believe they could, and should, do under current law.  Rather, the Board is likely to engage in a more restrained approach based on already-existing doctrines and cases given the Board’s desire to avoid the misimpression that it is merely engaging in politically-motivated flip-flopping.

Paul’s paper was part of a symposium at Indiana University-Bloomington on labor and employment law under the Obama Administration.  The abstract appears after the jump.

Under the National Labor Relations Act, as interpreted by the courts and the National Labor Relations Board (Board) over the last sixty years, employers have been permitted to give captive audience speeches at work to employees contemplating unionization. Employees must attend such meetings, cannot question the employer representative, and may not have the union come to the workplace to present opposing views. Not surprisingly, these speeches are one of the most effective anti-union weapons that employers currently have in their arsenal. Now that the Board has both a quorum and a sizable Democratic majority, this Essay considers if, and how, the Obama Board might limit the rights of employers to engage in captive audience speeches during union organizational campaigns.

If the issue arises in a representation election case, the Board might expand the Peerless Plywood doctrine to prohibit captive audience speeches for a longer period of time before an election. On the other hand, If a union raises the captive audience speech issue in a case alleging a Section 8(a)(1) unfair labor practice, the Board might reexamine its precedent under Section 8(c) and consider when exactly employer captive audience speech tactics become coercive under Exchange Parts and Gissel. This approach would require a more searching inquiry into the content of the speech. It might also lead the Board to adopt a presumption of employer coercion where employees are unable to leave such a meeting or ask questions of the employer’s speaker. An employer would be able to rebut such a presumption under a modified form of the Struksnes polling standards that would make clear the purpose of such meetings and assure employees against retaliation for not adhering to the employer’s anti-union message.