Tamara Tabo

Convicted murderer Joseph Wood’s execution began at 1:52 p.m. yesterday. He was pronounced dead at 3:49 p.m., according to a statement from Arizona Attorney General Tom Horne. Some witnesses insist that Wood continued to gasp for air at least 600 times after he was supposedly fully sedated. Others argue that he was merely snoring. Everyone agrees that the lethal injection process took a lot longer than the expected. Death by lethal injection typically occurs within ten minutes or so.

America has grown accustomed to long delays in carrying out the death penalty. Inmates sit on death row for years, even decades. As Chief Judge Alex Kozinski wrote, “Old age, not execution, is the most serious risk factor for inmates at the San Quentin death row.” We may be used to delays before denizens of death row get to the death chamber, but we have only recently started to see delays once an execution has actually begun….

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On Tuesday, the U.S. Court of Appeals for the Fifth Circuit released the latest opinion in UT v. Fisher, the ongoing battle over the role of race-based preferences in the University of Texas at Austin’s undergraduate admissions policy. Last year, the U.S. Supreme Court ruled that the Fifth Circuit had failed to apply the proper strict scrutiny standard to its earlier review of UT’s admissions scheme. Justice Anthony Kennedy wrote the court “must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” He cautioned that, if a non-race-discriminatory approach could bring about UT’s stated goal of a “critical mass” of campus diversity, “then the university may not consider race.” The Court remanded the case back to the Fifth Circuit. This week, two of the three judges on the Fifth Circuit panel concluded that the use of race was, indeed, necessary.

Judge Emilio Garza’s dissent (beginning on page 44) criticizes the majority opinion for deferring impermissibly to UT’s claims, despite the Supreme Court’s instruction. He writes, “Although the University has articulated its diversity goal as a ‘critical mass,’ surprisingly, it has failed to define this term in any objective manner.” He later writes, “The majority entirely overlooks the University’s failure to define its ‘critical mass’ objective for the purposes of assessing narrow tailoring. This is the crux of this case — absent a meaningful explanation of its desired ends, the University cannot prove narrow tailoring under its strict scrutiny burden.”

How much diversity is a critical mass of diversity? Is this a unit of measure like a team of oxen or a murder of crows? How can a court possibly determine whether a given policy is necessary to achieve critical mass if we don’t know what that is? UT isn’t exactly the International Bureau of Weights and Measures, but a little bit more precision would be helpful.

The concept of critical mass is problematic for many reasons. Its vagueness provides a poor measure for reviewing courts. It packs in several dubious assumptions about the meaning of race. Here’s one more reason why “critical mass” is such a critical mess . . . .

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Earlier this week, several prominent LGBT advocacy groups announced that they would no longer support the proposed Employment Non-Discrimination ACT, known as ENDA. If the U.S. House of Representatives passes ENDA, it would create legal safeguards in the workplace for gay, lesbian, and transgendered employees. The National Gay and Lesbian Task Force Action Fund led the move, with the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, Lambda Legal, the National Center for Lesbian Rights and Transgender Law Center later joining NGLTF’s initial statement. The groups fear that the Supreme Court’s recent decision in Hobby Lobby signals a move toward expansive religious exemptions. Consequently, the groups will now focus their efforts on securing rights for the LGBT community like those provided by Title VII of the Civil Rights Act of 1964 and the Constitution’s Equal Protection Clause.

A few months ago, I wrote about ENDA and why conservative Republicans in the House ought to pass the bill. I pointed to a novel D.C. district court ruling allowing a gay man to move forward with his Title VII employment discrimination claim, based on his status as a homosexual male. I described the differences between Title VII’s religious exemptions for employers and the much broader exemptions provided by ENDA. In my earlier piece, I wrote, “Republican Congress members should think twice about refusing to enact legislation that would provide ENDA’s key protection of religious freedom. If they fail to do so, and the push to expand the scope of Title VII in the courts continues, no such protection will exist.”

Instead of prioritizing religious freedom, social conservatives in Congress have held fast to a strident moral opposition to LGBT rights. Instead of pressing for new, democratically enacted statutory rights, many advocates of LGBT equality will increasingly double-down on judicial re-interpretation of Title VII and the Equal Protection Clause. As each side digs in, the other side digs in deeper. Workable compromises seem fewer….

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With the Supreme Court’s 2013 term concluding on Monday, many Americans are assessing how they feel about the judicial branch of their government. Even if you are still reeling about some of the decisions made recently by the least dangerous branch, don’t forget the executive. The president and his agencies can also make you wonder how the American experiment is panning out.

On Tuesday, U.S. District Judge Reggie Walton issued an order to hear oral arguments from lawyers representing the Internal Revenue Service and the conservative nonprofit True the Vote. True the Vote is one of the conservative groups claiming IRS improperly targeted its application for nonprofit status based on the group’s political and philosophical affiliation. True the Vote filed a motion for a preliminary injunction and expedited discovery on Monday, calling for an independent forensics examination of any IRS hard drives, servers, or other computer hardware involved in the government agency’s possible targeting of conservative nonprofits’ applications for tax-exempt status. It wants an outside computer expert to try to ascertain how and when any electronic evidence, such as former IRS Commissioner Lois Lerner’s emails, may have been lost. Also, it would be great if the government didn’t spoliate — I mean “recycle” — any more evidence….

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The Supreme Court ruled today in McCullen v. Coakley that a Massachusetts law creating a buffer zone around abortion clinics violates the First Amendment. The law criminalized standing on a public sidewalk within 35 feet of an abortion facility, with narrow exceptions for employee and law enforcement access. Eleanor McCullen, the lead plaintiff, is a grandmother in her late seventies who stood on sidewalks near clinics in order to initiate quiet, one-on-one conversations with women seeking abortions. The Court held today that the buffer zones created by the law burden substantially more speech than necessary to achieve the Commonwealth’s interests.

The Court was unanimous in its judgment that the law violates the First Amendment rights of anti-abortion speakers such as Eleanor McCullen. So, why is McCullen so disappointing to conservatives?

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A recent study conducted by Maya Sen, a political scientist at the University of Rochester, and Adam Glynn, a government professor at Harvard, shows that judges who have at least one female child may be more likely to rule in favor of women in certain types of cases. The report “Identifying Judicial Empathy: Does Having Daughters Cause Judges to Rule for Women’s Issues?” finds that having at least one daughter corresponds to a 7 percent increase in the proportion of cases in which a judge will vote in a feminist direction. The study further finds that having one daughter as opposed to one son is linked to a 16 percent increase in the proportion of “gender-related cases decided in a feminist direction.” The study found the “daughter effect” was more dramatic in judges appointed by Republican presidents than in those appointed by Democrats.

Sen told the New York Times in a recent interview, “By having at least one daughter, judges learn what it’s like to be a woman, perhaps a young woman, who might have to deal with issues like equity in terms of pay, university admissions or taking care of children.” Sen and Glynn consider other causal explanations for their findings, but conclude that learning is the mechanism at play. For example, they rule out the possibility that parents of daughters feel compelled to rule in ways that would protect their female children Sen and Glynn saw an effect only in gender-related civil cases, not a conservative shift among gender-related criminal cases like sexual assault.

The problem with the study is not that the data are wrong. The problem is that too often those who use data like these mean to either exempt the judgments from moral consequence altogether or to praise particular judicial motivations that they happen to like. In the first instance, they justify legal realism with data, omitting any reflection on whether the observed effects can or should be minimized. They gloss over too the overwhelming number of cases that are decided by mundane, less-subjective methods. In the second variation, they celebrate the phenomenon as “empathy” with some results, while condemning it as “bias” in others . . . .

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This week, a Los Angeles County Superior Court found that five of California’s laws governing teacher retention violated the rights of schoolchildren under the equal protection clause of the California Constitution. Judge Rolf Treu issued a tentative decision in Vergara v. California, agreeing with plaintiffs that the provisions on firing public-school educators resulted “in grossly ineffective teachers obtaining and retaining permanent employment, and that these teachers are disproportionately situated in schools serving predominantly low-income and minority students.”

 

The United States Constitution, of course, provides no fundamental right to education. (Franklin Roosevelt’s “Second Bill of Rights” doesn’t count.) For example, in San Antonio Independent School District v. Rodriguez, the U.S. Supreme Court refused to apply strict scrutiny to a claim that the Texas funding scheme for public schools violated the equal protection rights of poor and minority students. The Court did so in part because it found no federal fundamental right to education.

 

The California Constitution, though, does provide for a fundamental right to education in its Article 9, Sections 1 and 5. In light of that, Judge Treu applied a strict scrutiny standard to the laws in Vergara. He concluded that the laws caused a violation of California children’s right to equality of education…

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Edward Snowden returned to the news this week when NBC aired an hour-long interview with him, the first on American TV. Anchor Brian Williams met with Snowden in a Moscow hotel. The 30-year-old former computer systems administrator described his motives for releasing an unprecedented payload of classified information about NSA surveillance.

Snowden is vexing. As a person, he seems a mix of likeable and unlikeable traits. He appears earnest, convinced of the rectitude of his choices even if, as he told NBC, “Sometimes, to do the right thing you have to break the law.” Yet he bristles at Obama Administration characterizations of him as a low-level employee, a high-school dropout. (For example, the president told reporters last year, “No, I’m not going to be scrambling jets to get a 29-year-old hacker.”) Even if Snowden is right to resist the connotations of those labels, listening to him defend himself in the interview can be painful. He insists he was “trained as a spy” who lived under an assumed identity and was a powerful operator. He sounds like a young man with a bruised ego. The last thing one wants to have to worry about in a situation of this great national and international importance, though, is one young man’s ego.

Snowden’s case is more important and more vexing. NSA’s surveillance programs are deeply troubling….

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UPDATE (5/17/2014, 6:00 p.m.): This piece proceeds on the premise that “Lisbeth” (the woman on whose behalf the fundraiser and Protecting Lisbeth Facebook page were created) and author of the Thought Catalog essay and Protecting Lisbeth blog are the same person. Though the parties involved currently remain anonymous or pseudonymous, this premise appears to be false. I regret any error or confusion.

In an essay for Thought Catalog called “I Had an Affair with My Hero, A Philosopher Who’s Famous For Being ‘Moral,’” an anonymous graduate student describes her soured romance with a prominent professor from another university and how she learned that he initially hid his history of pursuing other young women. Shortly thereafter, her friend started a campaign to crowd-fund expenses for legal action. They created the pseudonym “Lisbeth” for the essay’s author. Under the heading “Help us sue the school protecting a known rapist,” the fundraiser’s description now reads, “I’m Emma Sloan, Yale 2010. My dear friend is suing the professor who tried to rape her and the university for knowingly protecting him. Thanks to donations from our generous supporters, she can afford the $7000 retainer for a forensic psychiatrist.”

The Chronicle of Higher Education reported on the case. Many within the academic community have joined the fray, whether to champion Lisbeth’s cause, attach it to broader gender equality concerns, express doubts, or simply gossip.

Title IX obligates schools that receive federal funds to address sexual violence or harassment on their campuses. To pursue a grievance or official complaint, the person need not herself be the victim of the alleged discrimination. Someone who claims to be the actual victim of a Title IX violation has the additional right to pursue her claim in private litigation against the university. If she can show that the school was deliberately indifferent despite actual knowledge of the misconduct, she can win injunctive relief or money damages for her injuries. Yale’s Title IX coordinator, Stephanie Spangler, is investigating Lisbeth’s claims.

So, where exactly did this professor’s alleged conduct pass from merely smarmy to worthy of legal sanction?

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Despite the ever-growing ways that the U.S. Food and Drug Administration regulates what Americans can consume, FDA does not currently regulate genetically modified food. The State of Vermont wants to step in.

This week, Vermont will become the first state to mandate labeling of food products containing ingredients from genetically modified organisms (GMOs). It would require retailers of raw agricultural commodities to clearly and conspicuously label GMO-sourced food with the words “produced with genetic engineering.” (Think ears of corn in your supermarket’s produce section.) Producers of packaged food products must label their products with similar language if any ingredient contained in the product comes from a genetically modified source. (Think of that 56-ingredient protein bar sitting on your desk.)

The bill passed the Vermont House and Senate, and Governor Peter Shumlin just signed it into law yesterday. The law is scheduled to take effect in July 2016.

Why are some people so lathered up about eating ingredients that come from genetically modified crops? “Monsanto” has become a dirty word, with nouveau-hippie parents washing out their kids’ mouths with biodegradable, SLS-free soap when they hear them say it. Unfortunately, much public debate conflates genetic modification, exposure to pesticides, and all sorts of other “unnatural” stuff related to food.

Ironically, genetic modification of seeds aims to make crops more resistant to pests, disease, and drought, thus reducing the need for conventional chemical pesticides and increasing crop yields. A growing world population demands innovation to produce more crops with fewer resources. Billions of people need to eat. Too many GMO opponents seem to picture Dr. Frankenstein when they should be picturing Gregor Mendel or Mother Teresa. (Or, to be fair, Walter De Jong.)

That, however, is only the beginning of what’s foolish about Vermont’s new law . . . .

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