22 July 2014

Manifest Misconduct and Mismanagement

It isn't uncommon for a court case to reveal serious misconduct or mismanagement that is beyond the scope of the current litigation and therefore doesn't give the party suing a right to relief.

For example, a recent 7th Circuit case involving sex discrimination at a state prison in Indiana, revealed a rampant lack of discipline among the staff to the point that night shift workers were having sex on the Plaintiffs desk almost every night.  This was widely known and the supervisor expressly said that he didn't care and that she should just wash her desk off each morning.

The Court held that this didn't constitute sexual harassment because night shift workers only had sex there because it was convenient, and not because she was a woman, and further held that she had no retaliation claim because her complaint was not about gender related harassment, but merely run of the mill, not federally regulated harassment.

There is room to disagree with that conclusion, but the screaming and yelling obvious point revealed by evidence like this in her case, for which she personally wasn't allowed to sue in federal court, is that the management of the prison under both the current and previous warden was absolutely egregious.

This should, but all too often does not, have serious consequences.  The facts that came to light should cause every single manager on the day shift and night shift, and everyone who was involved in carrying out the harassment at that prison, to be fired in a matter of days.  If the staff at the prison cannot maintain some minimal degree of professionalism at work, then there is no way that anyone can reasonably expect that they are fulfilling their other professional duties in a reasonable manner.

Once upon a time, grand juries were convened when this sort of scandal was revealed to investigate the mismanagement of a public institution, but now, that doesn't seem to happen.

Indeed, this case also reveals an all to common divide and conquer litigation tactic.  The core sex discrimination in this case involved a slap on the wrist punishment for a male employee with seniority and higher rank who was involved in an affair, while she lost her pension, had a difficult time obtaining unemployment benefits and lost any hope of working for the state again.

In other contexts, it is common for a defendant to settle with someone who has the greatest capacity to litigate a wrongdoers misconduct, while the settlement leaves obvious harm to other similarly situated people as a result of the same pattern and practice of conduct who have less of a capacity to litigate without relief.  Similarly, even if multiple people violate the law in ways that give rise to legal liability, private litigators frequently satisfice, litigating until enough big pockets have paid enough in damages, even if that means that there are no consequences for equally guilty offenders who pose a continuing threat to the general public.

In a world where harms were mostly isolated incidents, this wouldn't be a serious problem.  But, in a world in which systemic conduct by big businesses, government agencies, and even not so big businesses that interact with many customers or vendors are the norm, as often as not, misconduct directed at one person or one employee is part of a pervasive pattern of misconduct that impacts many people.

For example, even if a contract term if found to be void as against public policy in a court case, it is rarely actionable for a firm to continuing using the same form contract in the hope of strengthening their negotiating position in future disputes with people who don't know that this happened.

In a better world, when a litigated case reveals something rotten, that information should be shared widely and have consequences.  All too often, however, this is artfully avoided.  Class action lawsuits were meant to address this kind of problem, but have not been very effective.  Routinizing other collateral consequences of misconduct and mismanagement that are revealed in a case should be one objective in reforming our civil litigation system.

16 July 2014

California's Death Penalty Held Unconstitutional

California has sentenced 900 people to death since 1978 when it reintroduced the death penalty, but has executed just 13, the last in 2006.  Seven people have died of other causes while on death row for each person who was executed.  The appellate process takes twenty-five years on average (twice the national average), in addition to the often lengthy process of convicting someone of the death penalty in the first place.

A federal judge held today that the entire process is unconstitutional because the ultimate reality that chooses which unlucky few people will be executed and who will not is so arbitrary and capricious that it violates the 8th Amendment prohibition against cruel and unusual punishment.

If the ruling sticks is will remove 742 people from death row, more than any court ruling in the history of the United States other than the ruling of the U.S. Supreme Court in 1972 that temporarily ended the death penalty in the United States.  Nationwide there are 3,070 inmates in the United States who have been sentenced to death and have not had those sentences reversed on appeal.  Almost a quarter of them could potentially have death sentences converted into life in prison by this ruling.

An appeal, if the State of California chooses to pursue it, would be to the United States Court of Appeals for 9th Circuit (arguably the most liberal federal appeals court in the country on death penalty issues), and then to the U.S. Supreme Court.  The state attorney general could, however, simply decline to appeal the case and end the death penalty in California, as was done in the case of Proposition 8, a plausible result giving the officials who hold those offices.  Kamala Harris, the attorney general, is a leading opponent of capital punishment and Governor Brown isn't a strong supporter of it either.  A 2012 referendum to abolish the death penalty in California narrowly failed with 48% of voters supporting the measure.

Military Justice, Isn't.

It is an embarrassment  to be a citizen of a country, like the United States that conducts the kinds of kangaroo court proceedings that the United States military is conducting at Guantanamo Bay.

There, military tribunals issue orders that prosecutors and judges can see, but defense counsel and the defendants are not allowed to see.  This is a fundamental miscarriage of anything remotely resembling due process, and it is fundamentally at odds with the principles upon which our nation was founded.

It is clear that the truth of the matter is that the U.S. is covering up an illegal policy of intentional torture, while seeking to use information obtained through torture in legal proceedings.  The defies all domestic and international standards of justice and deprives proceedings meant to bring terrorists to justice of all legitimacy.

President Obama, as a former constitutional law professor, with whom the buck stops as commander in chief of every members of the United States military involved in these military tribunals, owes our constitution and our nation's reputation for fairness and justice, more respect.

People Under 65 Don't Vote Their Pocketbooks

Voters aged 65 and older who believe they are net beneficiaries of federal spending are more likely to be Democrats and vote for Barack Obama than seniors who believe they are net contributors to the federal government. However, the 77.5 percent of voters under age 65 who believe they are net beneficiaries of federal spending are as likely to vote for Romney as for Obama and as likely to be Republicans as Democrats. Voters who live in states that receive more in federal funds than they pay in federal taxes are less likely to vote for Obama or to be Democrats. For most of the electorate, dependence on federal spending is unrelated to vote choice.
Thus, there is no meaningful correlation between perceived net benefit from the federal government, for voters under the age of sixty-five, and partisan affiliation. Moreover, actual net benefit from the federal government is weakly correlated with a tendency to vote Republican.

While people to engage in referendum voting, ousting the party in power during weak economies, social issues, rather than economic ones, seem to be the driving determiners of political identity.

An alternative explanation is that people misperceive whether or not they are net contributors to the federal government or not,  in response to surveys.  But, this is not very politically salient to most voters because the magnitude of the net contribution or net benefit is so modest either way for them.
Meanwhile, the number of people whose net contribution is really economically significant enough for it to be really salient to voting decisions is so small that personal self-interest is statistically unimportant.  In other words, if only 1%-5% of the population are net contributors in way great enough to be politically salient, the fact that they vote their pocketbooks is usually irrelevant to electoral outcomes.  Their power comes from campaign contributions that influence the masses on terms relevant to those masses, not from the clout of their own voting block.