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April 2, 2015

Texas v. United States

Judicial opinions are written to persuade. Perhaps this is the reason why Judge Hanen’s opinion in Texas v. United States resorts to truncated arguments, neglecting to discuss the opposing position. Furthermore, nowhere in the opinion does the judge indicate the devastating effect that the opinion will have on the people involved. Instead of focusing on the families that are at risk of being ripped apart through deportation as a result of his decision, Judge Hanen portrays the battle as an abstract political one between states that “bear the brunt of illegal immigration” while the (incompetent?) “powers that be” in the capitol are “rubberstamp[ing]” applications to avoid deportation or giving them only a “pro forma review.” No matter how long an opinion is—and this one is more than 120 pages long—it will sound polemical instead of persuasive if it does not recognize the other side’s arguments.

Among other things, Judge Hanen’s opinion holds illegal the decision by Jeh Johnson, Secretary of the Department of Homeland Security, to limit removal actions against some parents of citizens and permanent residents. The United States had claimed that this decision was not subject to judicial review under the federal Administrative Procedure Act on the grounds that it was a discretionary prosecutorial decision. Judge Hanen disagreed, holding that it was reviewable because, among other things, the statute used the term “shall” in relation to deportation instead of “may.” The judge’s handling of this one small point—the interpretation of “shall” in the statute—is illustrative of his failure to voice the United States’ argument in any but the weakest way. Similarly, his reluctance, in discussing this point, to recognize what is at stake for the families involved may show his fear that doing so would make the reader less sympathetic to his position.

This is certainly not the first time that a court has had to interpret a statutory instruction expressed through the word “shall.” The United States Supreme Court took up the issue in Town of Castle Rock v. Gonzales, holding that the statute there, which said that the local police department “shall arrest” those who violated domestic violence restraining orders, gave the local police discretion as to whether to arrest or not. Judge Hanen’s failure to deal with this case or with similar cases shows his effort to persuade through blunt assertion instead of through legal analysis.

Justice Scalia, writing for the Court in Castle Rock, denied that a mandatory arrest statute requires the police to make arrests for domestic violence restraining order violations. Instead, he said, “We do not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory.” (Emphasis in the original). He followed this with a lengthy discussion showing that police discretion to arrest has long “coexisted” with statutory mandatory arrest language. He also questioned how mandatory arrest would work in a setting, like plaintiff Gonzales’s, in which the person violating the restraining order is not present. Scalia’s point is that the statute cannot mean what it says because it would not be workable in that form. Furthermore, he engaged directly with the dissenting Justices’ position that other states have found mandatory arrest statutes in the context of domestic violence to be “more mandatory” than in other contexts.

In contrast, Judge Hanen in Texas v. United States paid only very quick lip service to the fact that some interpret “shall” as “may” before concluding that “shall” in the applicable statute is “imperative” and deprives the Department of the “right to do something that is clearly contrary to Congress’ intent.” There is no mention of Castle Rock or of any other similar case, except for one low-level Board of Immigration Appeals (BIA) decision. The implication is that this position is not worth considering. This is confusing since immediately prior to this conclusion, he wrote that “DHS does have the discretion . . . to determine how it will effectuate its statutory duty and use its resources where they will do the most to achieve the goals expressed by Congress.” Given this, one would have thought the interpretation of “shall” would be a more complicated problem for him. What comes through to the reader from Judge Hanen’s very brief analysis is that he is upset that the government has announced that it will not enforce the removal laws against “a class of millions of individuals” despite the unmentioned fact that it is continuing to enforce them—at what many consider to be the highest rate ever—against others.

Similarly, Justice Scalia in his opinion in Castle Rock recognized the powerful effect that his reading of the statute would have on powerless members of our society. It took him several paragraphs to recount the story of the abduction and murder of Gonzales’s children by her ex-husband who violated a restraining order; Scalia also detailed the police’s delaying tactics and refusal to do anything about the violation. This opinion, too, is written to persuade, but the sympathetic portrayal of the harm done by the failure to arrest helps to convince the reader that Scalia was aware of the horrific pain inflicted. In contrast, the reader of Texas v. United States does not have any reason to believe that Judge Hanen understood the devastating pain that could be inflicted by tearing families apart. His lack of empathy for the victims of his approach makes the opinion sound even more one-sided than it might otherwise.

It is this anxiety to persuade through a one-sided approach and the unwillingness to admit to the harm done by the decision’s result that hopefully will be remedied on appeal, regardless of the ultimate outcome.

Judith G. Greenberg

July 20, 2014

In Memoriam: Dan Markel (1972-2014)



Those inside and outside the legal academy are still coming to terms with the sudden and tragic loss of Florida State University law professor Dan Markel, who was shot and killed at his Tallahassee home on Friday.  Dan touched the lives of hundreds of students and colleagues.  I was fortunate to know him since law school, and wanted to share some (admittedly scattered) memories of a friend lost too soon.

Even as a 1L, when most of us felt uncertain and trembling about our career decisions (or even just making it through the next class), Dan carried a certain unusual confidence.  In criminal law, he argued in favor of sending people to “virtue schools.”  He lugged his old Macintosh laptop to all classes, dragging the plug carefully across the floor behind his classmates’ chairs.  On Saturday afternoons after synagogue, he was known to offer friends a mean vegetarian chopped liver.  He was a character, and a sincere one.

I lost daily contact with Dan after we graduated in 2000, but he resurfaced in my consciousness one day in 2005, when he launched Prawfsblawg.  I was in private practice and enjoying it, but reading the academic posts by Dan and his friends added a powerful new dimension to the legal issues I was contemplating.  I wanted to be part of it.  An in 2009, when I finally decided to break into the legal academy, Dan warmly and cheerfully facilitated my introduction to colleagues far and wide.  He reviewed my early scholarship.  Even though I wrote in civil procedure and he in criminal law, he connected me to the right people almost effortlessly.  Later, after I joined the New England Law faculty, he encouraged me to guest blog at Prawfs, which I have done and enjoyed on more than one occasion.  

It is remarkable that someone would do so much to help an old classmate who had been out of sight and out of mind for almost a decade.  But that was just Dan being Dan.  The outpouring of grief at his loss on Facebook and Prawfsblawg is a testament to how many lives he touched.  He was taken too young, and we will miss him greatly.  Baruch Dayan Emet.

May 15, 2014

Media and Transitional Justice: A Complex, Understudied Relationship

I first became interested in the role of media in transitional justice settings in 2009, while directing a monitoring project of the human rights trial of former Peruvian President Alberto Fujimori.  In the course of the project, the local press coverage of the trial drew my attention, with its explosive and provocative headlines often focused less on the proceedings of the trial as it was on scandal and speculation about the defendant and the victims.

I wondered how public consumption of these accounts contributed to the overall success (or not) of Peru’s transitional justice project. In my scholarly pursuit of thinking through this question, I was amazed to discover that few transitional justice scholars had examined it. Moreover, few countries have consciously considered the role of the media in the design of their transitional justice strategies.

How did we miss this central question? I think, in part, because assumptions about journalism and how it functions have insulated it from academic or practitioner scrutiny. For example, it is assumed that the media will automatically perform in a way consistent with the ‘canons’ of the journalistic profession and, moreover, that traditional peace-time approaches to journalism are the best suited for transitioning societies.

However, my observations compel me to take the stand that we need to question these assumptions, and for that reason I welcome ICTJ’s online debate.

Lisa Laplante

Professor Laplante directs New England Law's Center for International Law and Policy.  Her blog post is part of an online debate on “Should the Media Actively Support Transitional Justice Efforts?”  Her complete essay and those of other debaters are available on the International Center for Transitional Justice (ICTJ) website.

May 11, 2013

Privacy and the Surveillance State

According to a recent New York Times/CBS News poll, Americans by a large margin favor installing video surveillance devices in public places in order to provide greater security, with 78 percent of participants saying such surveillance is a good idea.

The poll was taken in the wake of the bombings in Boston on Marathon Monday and the results likely reflect the very real anxiety that such horrific events can produce. The positive reaction to greater surveillance is natural and understandable. But that does not necessarily mean that it will lead to sound public policy.

It remains that it is always easier to give away someone else's privacy interests, especially hypothetically. Most people cannot imagine ever being the target of government surveillance—for them, the potentially ubiquitous video recording devices will be aimed at someone else.

That is fine as far as it goes, but the fact is that, under the Fourth Amendment doctrine for determining whether you have a protectable privacy right as against the government, the Supreme Court has repeatedly said that any expectation of privacy you assert must be objectively reasonable. We all do lots of things in public that we assume to be private—like talking on cell phones, text messaging, and even having a conversation with the person walking next to you, and believe the assumption to be reasonable because we do not really expect anyone nearby actually to listen to what we are saying or texting. But the fact that someone could do so, according to the Court, eliminates any true expectation of privacy. And even if that were not the case, could we say any of these communications reasonably should be deemed private when the government has the capacity to record and review all of them?

It could be argued that the problem lies not in our actual expectations but in Fourth Amendment doctrine itself. But despite noises from some justices in recent years—like Justice Sotomayor's concurring opinion in the GPS case from last year, United States v. Jones—it's far from clear that a major doctrinal shift is coming.

What is interesting, though, is that just as we seem willing to allow the government greater surveillance capabilities, we balk at the potential of new technology like Google Glasses to allow people to accomplish a similar end, by surreptitiously taking photos and short videos of anyone who happens to be nearby. Perhaps it is the fact that this technology allows our privacy to be invaded without our knowledge or consent that so bothers us. Whatever the reason, legislators in many state and local governments have begun exploring efforts to regulate these Google devices, which are not yet on the market.

Such regulation would seem to indicate that people are at least somewhat concerned to maintain some degree of privacy in public. But more than anything it reveals our ambivalence about privacy. Trading privacy for security seems like good policy to many, but it's worth remembering that the constitutional expectation of privacy test historically has functioned as a one-way ratchet, with the scope of privacy as against the government continually being diminished as it becomes more difficult to maintain that expectations of privacy are reasonable.

Lawrence Friedman

March 27, 2013

Reflecting on Gideon at 50

This month marks the 50th anniversary of Gideon v Wainwright, the Supreme Court’s celebrated decision establishing the constitutional right to counsel for indigent criminal defendants. The occasion provides much to commemorate, but also reminds us how far there is to go. Indeed, it has become commonplace to note that “Gideon’s Trumpet” (the title to the wonderful book by Anthony Lewis, who just passed way) has been “muted” by widespread violations of the right to counsel. Blame rests primarily with persistent underfunding of the defense function and the excessive caseloads that result. An assembly line of routinized pleas, in which lawyers engage in little or no advocacy on behalf of their clients, too often is the norm in courthouses across the country.

The extent of the problem is well-documented. According to the Constitution Project’s exhaustive study, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, underfunded and overworked public defenders:

"[A]re constantly forced to violate their oaths as attorneys because their caseloads make it impossible for them to practice law as they are required to do according to the profession’s rules. They cannot interview their clients properly, effectively seek their pretrial release, file appropriate motions, conduct necessary fact investigations, negotiate responsibly with the prosecutor, adequately prepare for hearings, and perform countless other tasks that normally would be undertaken by a lawyer with sufficient time and resources."

Nor is the problem new. Ever since Gideon was rendered, a parade of studies has documented continuous underfunding of indigent defense services and the problems that result. And while each report provides its own perspective, invariably the conclusion is the same: criminal defendants are represented too often by lawyers -- whether public defender, appointed counsel or otherwisewhose capacity to render adequate representation is severely limited. As Stephen Bright, president of the Southern Center for Human Rights, has recently stated, “The representation received by most poor people accused of crimes -- if they receive any at allis a far cry from the constitutional requirement of ‘the guiding hand of counsel at every step in the proceedings’” contemplated by Gideon and its progeny.

Changing course after decades of neglect is not easy, although important efforts at reform are underway. They include litigation to produce greater compliance with Gideon’s demands. Currently pending before the Supreme Court of Florida, for example, is a case that, if successful, will permit public defenders in Miami-Dade County to decline new appointments and to withdraw from existing ones when caseloads, which can exceed 500 cases per attorney, become intolerable. Other efforts include promoting the independence of defense lawyers through the creation of statewide indigent defense commissions. New Mexico’s voters, for instance, recently approved a constitutional amendment creating an independent commission to oversee the provision of defense services to indigent clients and to promote a robust defense function. State bar associations have also taken a leading role. For example, Washington’s highest court recently adopted recommendations authored by the state’s bar association to cap caseloads at levels that, while still high, comply with national recommendations. Such efforts make meaningful contributions and must be encouraged.

Lasting solutions, however, will require resetting the political calculations that drive funding decisions, which in turn depend upon raising and sustaining public consciousness about the critical importance of adequate defense. Here, some feint glimmers of hope can be detected. For example, a new award-winning documentary that will premiere this summer on HBO, Gideon’s Army, tracks the stories of three brave public defenders in the Deep South who fight for justice for their clients despite the long odds against them. Also profiled in the film is an innovative Atlanta-based organization, called Gideon’s Promise, which works with public defense organizations and others to train and support frontline defenders. Other notable efforts to build public awareness include a new film by the Constitution Project narrated by Martin Sheen, Defending Gideon, and recent books on the importance of effective criminal defense (including Amy Bach’s excellent investigative account detailing the failings of the criminal justice process, Ordinary Injustice: How America Holds Court, and the just released book on Gideon itself, Chasing Gideon: The Elusive Quest for Poor People's Justice by Karen Houppert).

Time will tell whether these and other efforts can change the narrative about Gideon’s legacy. Optimists will view them as part of the arc toward ensuring a meaningful right to counsel, while pessimists may see them as part of the same story often retold. But all should agree that the time is long past to make Gideon’s promise a reality.

Tigran Eldred

September 27, 2012

Stakes are high for Abbas’s statehood gamble

Earlier today, Palestinian Authority President Mahmoud Abbas announced his intention to press ahead with a bid for UN affirmation of the statehood of Palestine.  He recalled last year’s unsuccessful application for UN membership, and has chosen instead to seek a General Assembly resolution recognizing Palestine’s Observer Mission as that of a state observer, as opposed to its current status as an observer 'entity,' as I predicted last fall. 

Abbas is taking a huge gamble. 

While he is very likely to receive the General Assembly affirmation he seeks, he risks losing hundreds of millions of dollars in U.S. aid, particularly having announced this intention prior to November’s U.S. presidential election.  He may be able to mitigate that risk by not pushing for the adoption of a resolution by the General Assembly (GA) until after the election.  At the same time, he has made clear that he expects a resolution affirming Palestinian statehood to be adopted during the present GA session, which runs until next September.

Major developments have occurred in the past year with respect to the question of Palestinian statehood.  The most significant development since the November 2011 admission of Palestine into the United Nations Education, Scientific, and Cultural Organization (“UNESCO”) was the release of a statement earlier this year by the Chief Prosecutor of the International Criminal Court by which he essentially punted the issue of Palestinian statehood to the political organs of the UN and the ICC Assembly of States Parties.

One of the more sensitive issues implicated by Palestine’s UN bid is the question of whether Palestine can consent to the exercise of ICC jurisdiction over conduct that took place in Gaza during Operation Cast Lead – the 2008-09 armed conflict between Israel and Hamas.  Article 12(3) of the ICC Statute allows for a “State which is not a Party to this Statute” to accept the exercise of the Court’s jurisdiction over crimes committed by its nationals or within its territory. 

After the Palestinian Authority lodged its declaration with the ICC Registrar, the ICC Prosecutor reported that he was examining “first, whether the declaration accepting the exercise of jurisdiction by the Court meets statutory requirements, and second, whether crimes within the Court’s jurisdiction have been committed.”  The phrase “statutory requirements” presumably includes the question of whether or not Palestine is a “state” for the purposes of Article 12(3).

On April 3, 2012, the ICC Prosecutor released a statement referring, inter alia, to the practice of the UN Secretary-General as treaty depositary.  The statement also implied that his office, for the moment, would not be considering allegations of crimes committed in Palestine. 

The Prosecutor’s reference to the treaty practice of the United Nations may add some weight to the significance of the UNESCO vote.  As with UN membership, the issue of treaty participation is distinct from the question of statehood.  Negotiating states can decide to make treaty participation available to entities other than fully independent states.  Even where the text of a treaty limits participation to states (as does the ICC Statute), there may be a grey zone in which the treaty depositary is afforded a degree of discretion.  On this latter point, the Prosecutor’s statement refers to an understanding adopted by the General Assembly at its 2202nd plenary meeting on 14 December 1973.   

In the 1970s, the UN Secretary-General, concerned about purported treaty actions by entities whose status in international law was unclear, brought this issue to the attention of the General Assembly.  The General Assembly adopted an understanding that “the Secretary-General, in discharging his functions as depositary of a convention with an ‘all States’ clause, will follow the practice of the Assembly in implementing such a clause and, whenever advisable, will request the opinion of the Assembly before receiving a signature or an instrument of ratification or accession.”  The Prosecutor essentially used this understanding as a justification for placing the issue before the political organs of the United Nations. 

However, the Summary of Practice of the Secretary‐General as Depositary of Multilateral Treaties, to which the Prosecutor cites, also includes reference to the so-called “Vienna formula.”  The Vienna formula is drawn from the Vienna Convention on the Law of Treaties.  According to Article 81 of that instrument, “[t]he present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention…” 

The Summary of Practice seems to indicate that the Secretary-General will only seek the guidance of the General Assembly where a purported state does not fall within this formula (i.e. that a treaty open to participation by “all states” will presumably be open to any purported state that falls within the Vienna formula).  Following its admission into UNESCO, a specialized agency of the United Nations, Palestine arguably falls within the Vienna formula.  Admittedly, however, UN practice on this point is somewhat ambiguous.

In any event, if the General Assembly does indeed affirm the statehood of Palestine, it would be very difficult for the ICC Prosecutor to decline to investigate the allegations of international crimes committed during Operation Cast Lead, as alleged, for example, in the Report of the United Nations Fact Finding Mission on the Gaza Conflict.

John Cerone

July 18, 2012

How To Succeed in Law School?

I received an interesting question recently from an incoming student: “How does a student get through New England Law successfully?” In thinking about how to answer this question, I decided to articulate the most common early mistakes that I see students make. So, for the benefit of students starting law school this fall, here’s the list:

1. Not using time wisely: underworking. Some of the students who suffer from the "not using time wisely" problem simply don't spend enough time on law school. Often, these students think that law school is like undergraduate study, where some students could put in maybe four hours a day during the semester on classes and/ or studying, and then cram for finals at the end. It just doesn't work like that in law school, because there's so much material that you have to comprehend immediately. I recommend that first semester students assume that they need to put in 40 hours a week during the semester, and about 60-80 hours a week during and just before finals. I've found that students who work hard during the semester on fully understanding the law as they learn it have more time before exams to focus on exam prep (i.e. how to write a law school essay, etc.)

2. Not using time wisely: overworking. Some students who don't use time wisely are not working efficiently. A lot of times, these students are diligent, hard-working students who have the exact right attitude for law school, but they try too hard to do EVERYTHING. Students who do well in law school know their limits and are able to prioritize the important things and de-prioritize the less important things. So, what are the important things? That's my next point....

3. Understanding what law school is actually about. Many students underperform because they misconceive what they're supposed to be learning and how they're supposed to demonstrate it on final exams. This problem actually falls into two categories....

a. Understanding what you're supposed to do during the semester. Law school is odd in that we seem to send the message that the cases are the most important thing you're studying. Because most classes use the Socratic method and the case method, the implicit message is that you will be tested on cases. When I was an undergrad, I took a Constitutional Law class in which the final exam simply asked us to EXPLAIN ten cases we'd read. Law school is NOTHING like that. Although the cases "matter," what they matter FOR most is not what many students think. What the cases matter for is: (1) the legal rule (i.e. what the law is); and (2) how the facts apply to that rule. The legal rule is important because that's the blackletter law that should go into your outline; it's the "stuff" you need to know. How the court applies the facts to the law is important as an example for you of how to DO legal analysis. And, that leads to the second category....

b. Understanding what's expected of you on exams. On essay exams, you are graded mostly on your legal analysis. Most 1L students think that you're graded on your ability to recite the rules of law that you learned from the cases and to determine the outcome of hypotheticals "correctly." While you DO need to know and express those rules on exams, that counts for maybe 10% of your grade. The other 90% is based on your legal analysis. So, what's the difference? Here's an example:


Bad essay answer: The Issue raised in this problem is whether D is guilty of murder. Murder is the premeditated killing of another person. Because D premeditated, he's guilty of murder.


Good essay answer: The Issue raised in this problem is whether D is guilty of murder. Murder is the premeditated killing of another person. The prosecution will argue that because D and victim had recently had an argument, that shows that D had the motive to kill victim and thus he likely premeditated. D will argue, though, that this killing occurred in the heat of passion, because of the recent disagreement where insults were exchanged, and he can therefore only be convicted of manslaughter. This case is similar to State v. Jones where D was in a heated exchange with victim and ultimately killed him. The court held that "mere words are not enough" to allow a finding of "heat of passion." Like Jones, this case involves only mere words. These words were insufficient to permit a finding of "heat of passion," and therefore D is guilty of murder.

The "Bad" example is an extreme version of an inclination I see often; students think that they need to say the rule and say the result -- almost like a written version of a multiple choice question. By contrast, in the “Good” answer, the student not only stated the law but also applied it in an almost dialectical fashion. This shows that the student will be a good attorney because not only can she represent her client, but she can also foresee and rebut her adversary’s arguments.

So, there you have it. Those are, in my humble opinion, probably the biggest and most common mistakes that I see. I invite comments from current students on their perceptions and experiences, too. If my ideas on this are controversial, I certainly welcome other thoughts. I think the more information we can provide to incoming students, the better prepared they will be to succeed.