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A “20/20” Vision: Supreme Court of Missouri Revisits Admissibility of Eyewitness Expert Testimony After More Than 30 Years
Get PDFSince 1989 the admissibility of expert testimony regarding eyewitness identifications has been unaddressed in Missouri’s courts. During this time, over 2,000 scientific studies have illustrated the fallibility of eyewitness testimony. The United States Supreme Court has long recognized the “vagaries” of eyewitness identification and the real potential for erroneous identifications leading to wrongful convictions. Most recently, advanced capabilities with DNA evidence have highlighted the tragic consequences of erroneous eyewitness identification. Indeed, a now often-cited fact: Of the 375 exonerations since 1989, nearly seventy percent involved wrongful convictions founded at least in part on eyewitness identification
An Extended Essay on Church Autonomy
Get PDFThe doctrine of church autonomy has its own exclusive line of precedent running from Watson v. Jones (1872) through Kedroff v. St. Nicholas Cathedral (1952) - where the doctrine was first recognized as having First Amendment stature - and culminating with renewed vigor for religious institutional autonomy in the unanimous decision of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012). Attention to church autonomy has expanded rapidly since the Supreme Court’s decision in Hosanna-Tabor, and its scope is much disputed as it pushes aside other claims and interests. In its most familiar form—the “ministerial exception” - it is regarded as a defense in the nature of an immunity, an interposition to which there is no balancing because there can be no countervailing state interests sufficient to overcome the defense. The First Amendment has already struck the balance in favor of church autonomy, as the Court put it in Hosanna-Tabor.
The origin of the doctrine of church autonomy and its undergirding by both the Establishment and Free Exercise Clauses continues to be puzzling to many. It is as if the First Amendment defense is not a religious rights claim, but a structural clause rightly ordering two centers of authority, namely institutional religion and the civil state. As a structural provision, it makes sense that there is no interest balancing. Moreover, when the defense of church autonomy is raised in the course of litigation, its structural nature warrants courts limiting discovery into the merits until this threshold defense is disposed of. Likewise, as a structural clause it makes sense that when the defense is initially denied by a trial court, an interlocutory appeal is warranted under the collateral order doctrine.
If the doctrine of church autonomy affords the church and similar religious entities a discrete zone free of government, what are the subject matters that are beyond the law’s reach—a field described in Hosanna-Tabor as “the internal governance of the church”? While the zone is relatively compact, we are talking about functions that go to the very heart of a religious entity’s maintaining essential control and commanding its destiny. From the full range of the High Court’s case law, we learn that church autonomy has been found to carve out five areas over which a religious organization is sovereign: (1) the determination and interpretation of religious doctrine; (2) the determination of the organization’s polity or governance structure, including its implementation in canons and bylaws; (3) the hiring, supervising, promoting, and removing of clergy, worship leaders, and other leaders and employees with explicitly religious functions; (4) the determination of who is admitted to and expelled from membership, as well as which members and affiliates are in good standing; and (5) internal communications of the religious organization pertaining to the full enjoyment of the prior four subjects. These five subject areas are a guide in taking measure of lower-court decisions, some of which are attributing to church autonomy too little scope and others too broad a sweep.
As the case law has unfolded, church autonomy has been regularly invoked in four litigation patterns: (1) a plaintiff sues a religious entity for employment discrimination (or a related common-law claim), and the entity invokes the ministerial exception to block the lawsuit; (2) a lawsuit raises questions that concern the validity, meaning, or importance of religious assertions or disputes, and civil authorities refuse to take up those questions; (3) a disagreement between two factions within a church or denomination is brought before the civil authorities, who then defer to the determination of the dispute by the highest ecclesial judicatory; and (4) a party sues for defamation based on communications that arose out of a matter of internal governance, and the defendant pleads church autonomy as a defense.
Concerning this third pattern or internecine disputes between two factions, in lieu of deferring to the proper ecclesial judicatory the Supreme Court has permitted states the alternative of adopting a rule of decision characterized as “neutral principles of law.” Resort to this alternative, however, has been permitted by the Supreme Court only in property cases where the two factions have abandoned attempts at resolving their underlying doctrinal differences, thus the only matter remaining for civil resolution via “neutral principles” is who gets legal title to the church property.
As to the fourth pattern involving defamation and related torts, some state courts have gone astray. Rather than applying the elements of the defamation claim before it and asking if their proof will entangle the parties and the court in one or more of the five subject matters identified by the Supreme Court as protected by church autonomy, some of these courts have wrongly looked to “neutral principles”—a divergence from church autonomy doctrine permitted by the Supreme Court only in internecine disputes over title to church property.
The Supreme Court in Hosanna-Tabor and more recently in Our Lady of Guadalupe School v. Morrissey-Berru (2020), showed no interest in the Papal Revolution of the 11th century out of which Catholic scholars derive freedom of the church (libertas ecclesiae). This deprives the Court of some distant principles to undergird the doctrine of church autonomy, but it also frees it from arguing that the Papal Revolution is a suitable undergirding for church autonomy as found in a late 18th century constitution. Instead, in the view of the Supreme Court the proper historical backdrop for understanding the First Amendment’s doctrine of church autonomy is nearer in time and closer to home. Under the guiding principle of originalism (although originalism was not expressly mentioned in Hosanna-Tabor), that means looking to what motivated revolutionary Americans on this side of the Atlantic: war with Great Britain, including rejection of its model for the established Church of England
Still Waters Run Deep(fakes): The Rising Concerns of “Deepfake” Technology and Its Influence on Democracy and the First Amendment
Get PDFThis Note explores how deepfake technology can disrupt democracy and influence elections through the protections given to political speech under the First Amendment. Part II describes deepfakes in greater detail and identifies the wide uses for deepfake technology. Part III reflects on how the federal government and states are attempting to regulate deepfakes, mainly to protect individuals from pornographic exploitation and election tampering. Finally, Part IV discusses in detail how the First Amendment creates constitutional barriers in regulating deepfakes
Supplemental Environmental Projects’ Wild Ride is a Call for Legislative Action to Protect a Valuable Negotiation Tool
Get PDFIn March 2020, the head of the Department of Justice’s Environmental Natural Resources Division (“DOJ ENRD”) issued a decision that fundamentally altered the federal government’s ability to address environmental harm. The decision removed a valuable tool from the negotiation toolbox that Department of Justice (“DOJ”) attorneys used for decades when negotiating settlements in civil enforcement of federal environmental protection laws. This policy change had the potential to significantly impact resolution of complex environmental disputes. In February 2021, the new Chief of the DOJ ENRD rescinded the 2020 memo in response to an executive order from newly elected President Joe Biden. While the rescinding of the 2020 memo does restore the pre-2020 status quo, both actions show the power that executive leadership has to unilaterally alter the course of environmental dispute resolution. The tool the 2020 memo prohibited is called a Supplemental Environmental Project (“SEP”)
Killing the Cat\u27s Paw
Get PDFIn federal employment discrimination law, courts apply the label cat\u27s paw to describe certain cases. Judge Richard Posner first used the term cat\u27s paw in the context of federal discrimination jurisprudence, invoking a fable about an enterprising monkey who tricks a cat into getting hot chestnuts from a fire.\u27 As the cat removes the hot chestnuts from the fire, the monkey eats them, leaving the cat with nothing except burnt paws.
In its traditional form, a cat\u27s paw case is one in which a biased individual passes along negative information about a worker to an unbiased decisionmaker. The unbiased decisionmaker then takes a negative action against the worker based on the information provided. Although the cat\u27s paw metaphor appears to be an easy way to describe a subset of discrimination cases, the term has grown beyond this descriptive function. There is now an entire body of employment discrimination law built around the cat\u27s paw concept.
This Article explores cat\u27s paw as a metaphor. It argues that courts should abolish the metaphor for three main reasons. First, cat\u27s paw does not function well as a metaphor. Other than providing a clever turn of phrase, cat\u27s paw does not perform any of the traditional functions of metaphor. The concept of cat\u27s paw does not make an abstract principle more concrete. It does not provide fresh insights about discrimination law. It does not make law more accessible by allowing lay readers to better understand the law. Indeed, most people have never encountered the fable that underlies cat\u27s paw. Second, cat\u27s paw does not promote reasoning by analogy. It is unable to perform this function because the cat\u27s paw fable does not describe what is happening in discrimination cases. The fable portrays two actors (a monkey and a cat) who have no legal relationship to one another and are not imbedded within a larger organization. The monkey is acting for his own personal gain and is not constrained or emboldened by the formal policies and informal norms of a larger organization.
Unfortunately, the fable does not even relate to the two most important actors in discrimination cases: the worker and the employer. They are simply not part of the idea that the fable conveys. Perhaps most striking, in the fable, the monkey gets away with his mischief. The overall tale told by the cat\u27s paw fable is that a wrongdoer suffers no consequence for his actions. This does not seem like an appropriate idea to guide federal discrimination law.
Finally, employment discrimination as a field has suffered greatly by using cat\u27s paw. Even though the pitfalls of judging by metaphor are well known, judges have not been careful in using cat\u27s paw. In many cases, judges have inserted aspects of the cat\u27s paw fable when describing the legal standard for proving employment discrimination. Rather than looking to the statutory language or purpose for meaning, the judges view the limits of liability through the fable instead. This happens even though the fable introduces concepts that are not required to adjudicate discrimination claims
Donna Shestowsky’s Presentation on Litigants’ Views of Court ADR Options
Get PDFThis post hightlights findings from Donna Shestowsky’s research finding that litigants seem to be unaware of ADR options, and that knowing about some of these options improves their opinions of the court itself. Surprisingly, having a lawyer did not make litigants more aware of ADR options, even when those options were offered by the court system
THE LAW CAN BE DANGEROUS TO LAWYERS’ MENTAL HEALTH
Get PDFThe legal system sometimes provides important benefits such as helping people solve difficult problems, making institutions function properly, and promoting justice. But the process needed to achieve these goals often is extremely stressful for litigants. Not only do parties suffer stress, but also do lawyers, law students, and law professors. So we all need to take care of ourselves and others
Tax Cannibalization by State Corporate Taxes: Revised Estimates
No full textTo what extent do our prior estimates for the tax cannibalization problem still apply post-2017? In this article we address that question, focusing on the implications of the reduced federal corporate income tax rate
