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July 24, 2015

Recent Supreme Court Term: Obergefell v. Hodges: Equality and Constitutional Interpretation


On June 26 the U.S. Supreme Court decided the “same-sex marriage” case Obergefell v. Hodges. The Court held unconstitutional, by a 5-4 vote, state laws that limit marriage to heterosexual couples. According to the Court, these limits violate both the Due Process and Equal Protection clauses of the 14th Amendment.

Justice Kennedy’s opinion for the Court focuses on the crucial role that marriage, as a component of the liberty protected by the Due Process clause, plays both in individuals’ lives and in structuring society.  Denying same sex-couples the opportunity to marry not only affects what type of society we live in, but also impoverishes the lives of a particular group of people in society. According to the Court, individuals define themselves through marriage. In addition, through marriage they access other “freedoms, such as expression, intimacy, and spirituality.” (p. 13) Marriage is also a means for individuals to achieve the “highest ideals of love, fidelity, devotion, sacrifice, and family.” (p. 28) Furthermore, children in same-sex families are injured by having to endure the stigma of familial inferiority as a result of the non-recognition of their parents’ marriages. (p. 15)

Each of the four dissents objects to the majority’s conclusion that there is a violation of the Due Process clause. The dissenting justices argue that Justice Kennedy’s reasons for finding that same-sex couples have a protected fundamental right to marry are matters of policy and that the state legislatures, not the U.S. Supreme Court, should decide what policies are best for the people and society overall. The Chief Justice’s dissent, for example, does not deny that there is a fundamental right to marry; instead the Chief Justice argues that this fundamental right applies only to heterosexual couples because “the core definition of marriage … [is]the union of a man and a woman.” (pp. 8 and 16.) This “core” meaning of the fundamental right of marriage is “deeply rooted in this Nation’s history and tradition.” Constraints on the definition of constitutionally protected rights keep the courts from legislating.

The majority and the dissents all recognize that the terms “liberty” and “marriage” must be interpreted. Unconstrained interpretation is problematic because it is difficult to distinguish from the act of legislating. Nonetheless, courts must interpret the words of a text, including a constitution. To be legitimate within our system, judicial interpretations must be bounded by an accepted and acceptable structure. The Court and the dissents disagree on what this structure is.

The Chief Justice’s dissent searches for a “core” meaning of marriage as a means of avoiding excessive interpretation. However, as the Court notes, the institution of marriage has changed dramatically over time. Different “core” meanings can be identified at different moments in time, space, and society. As Justice Kennedy wrote in his opinion for the Court, the doctrine of coverture was critical to the meaning of marriage in the early 19th century. At the time, a married woman’s husband could have determined where she would live, whether she could enter any particular contract, and how to employ any assets she may have owned upon marriage. He could also decide whether to force sexual relations on her and under what circumstances to discipline her physically or otherwise. In short, the central feature of her marriage might have been her subordination to her husband, not the fact that he was sexually male. The Chief Justice’s definition of marriage as based on heterosexuality is a choice among many central definitions of marriage.

The Court’s definition of marriage relies on a different set of concepts to constrain its interpretation: individual autonomy, intimacy and expression; the fundamental role that marriage plays in promoting child development and in structuring society; and the importance of equality as also articulated in the 14th Amendment.

For many decades, equality has had a critical function in identifying the proper role for courts in interpreting the constitutionality of majoritarian legislation. In our democratic system the courts protect minorities from oppression by the majority. (p. 24) See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) As the Court’s opinion notes, the ideas behind the Equal Protection clause reinforce the liberties protected by Due Process; restricting marriage to heterosexuals would have the effect of “diminish[ing] the personhood” of members of same-sex couples. (p. 19) Similarly, in U.S. v. Windsor, the Court highlighted the humiliation and financial harm to children in same-sex families when their parents’ marriages are not recognized by the federal government. This role of protecting minorities against harm done by the majority has been central to the role of the Court.

Since they cannot avoid interpretation, courts must identify the principles to guide their interpretations. In Obergefell, the Court chose protection of the members of a minority group against the demeaning life the legislative majority would have allowed them, a life determined by 19th century understandings of marriage.

The process of identifying the parameters for constitutional interpretation is one of the most important functions of courts and lawyers. The fact that it is subject to vigorous debate and is likely to continue to be so is healthy for our democracy.

Judith G. Greenberg

Recent Supreme Court Term: Zivotofsky v. Kerry


In a recent blog my colleague Lawrence Friedman noted, “many cases implicating the Constitution do not turn on the document’s text.” He was writing in the context of Fourth Amendment jurisprudence, but his observation is equally if not even more true in the context of foreign affairs and separation of powers. This is an area where the Court does not frequently tread for many reasons, not the least of which is that the Court is not keen to involve itself in what is usually seen as a turf battle between the two political branches.

Nonetheless, this past term the Court did take up a seemingly mundane case that has potentially significant consequences in the foreign affairs and national security arenas, areas where the Framers purposely created vague lines of authority between the President and Congress. Zivotofsky v. Kerry involved the petition of the Zivotofskys to have the birth of their child listed on his U.S. passport and consular report as “Jerusalem, Israel.” However, since 1948, when President Truman recognized Israel, he and every subsequent U.S. president have never acknowledged any country’s sovereignty over Jerusalem. Further, the Secretary of State has instructed State Department employees to record the place of birth for U.S. citizens born in Jerusalem as “Jerusalem,” with no further state affiliation.

Enter Congress, which in 2002 passed Section 214 of the Foreign Relations Authorization Act titled “United States Policy with Respect to Jerusalem as the Capital of Israel.” As this title suggests, Section 214 directed the Secretary of State to register the place of birth as Israel on registration of birth documents, certification of nationality, and passports for any U.S. citizen born in Jerusalem upon the request of the citizen or the citizen’s legal guardian. Section 214 was clearly intended to countermand the directives of the executive with respect to citizens born in Jerusalem.

The Court framed the clear conflict between the President and Congress in broad terms: 1. Whether the President has the exclusive power to grant formal recognition to a foreign sovereign? 2. If he has that power, can Congress command the President and his Secretary of State to issue a formal statement that contradicts the earlier recognition? In an opinion by Justice Kennedy the Court answered yes to the first question and no to the second.

The Court began its analysis by referring to Justice Jackson’s taxonomy in Youngstown Sheet and Tube Co. v. Sawyer, noting that this is a case where the President’s power is at its “lowest ebb” because he is acting in direct contravention of Congress, and thus he can rely solely on the powers the Constitution grants to him alone. However, the Constitution is silent as to whether or which branch has exclusive authority to recognize another sovereign. In fact, the Constitution does not mention the term “recognition” at all.

Unable to rely on the text, Justice Kennedy opts for a structural and, ultimately, a pragmatic approach to answer these questions. He notes that the Reception Clause in Article II directs the President to receive ambassadors and other public ministers. According to Justice Kennedy, that sounds a lot like recognition authority. Justice Kennedy goes on to list a number of other foreign affairs powers the Constitution vests in the President, such as making treaties and appointing ambassadors and other public ministers. Even though these treaty-making and appointments powers require senatorial consent, it is enough for Justice Kennedy that each is dependent on Presidential power. It is the President who must initiate the process. From this arguably thin reed, Justice Kennedy concludes that the President has the power to grant formal recognition to a foreign sovereign.

Justice Kennedy’s pragmatism is in full view as he goes on to address the second question, whether Congress can command the President and his Secretary of State to contradict his earlier recognition. Here the Court answers no; the President’s power is exclusive. This, according to the Court, is for the simple and obvious reason that the Nation must speak with one voice on the matter of recognizing a foreign sovereign. If the President is to be effective in negotiations over a formal recognition determination, it must be evident that he speaks for the Nation.

The conservative wing of the Court dissented in Zivotofsky. In the most scathing criticism, Justice Scalia questions whether the President’s recognition power is exclusive, but more to the point, he contends Section 214 has nothing to do with recognition of foreign sovereigns. Section 214, Justice Scalia argues, performs the much more prosaic function of allowing citizens some say in what their Government says about another country’s boarders in citizenship documents. Because citizenship documents are matters within Congress’s control, Congress has the authority to direct what those documents say.

It remains to be seen if this case will have longer-term impacts beyond its rather narrow facts. However, because the Court does not wade into this area very often, it is likely that courts, advocates, and commentators will turn to this case in support of various arguments over presidential and congressional authority. Some particular points of note are that that in this case the President argued for a much broader grant of authority. Citing to the 1936 case United States v. Curtiss-Wright, the Secretary of State contended that the President has exclusive authority to conduct diplomatic relations along with the “bulk of foreign-affairs powers.” The Court declined to read Curtiss-Wright so broadly, suggesting that too oft-cited language from that case that the President is the “sole organ of the federal government in the field of international affairs” is dicta.

Also interesting is that a majority of the Court did find express and exclusive executive power absent any clear language in the Constitution. The means by which the Court found this power in the constitutional structure and the Court’s pragmatic view of how a government must function is likely to provide a road-map for future foreign affairs and national security cases where the demarcation between the President’s and Congress’s power is vague.

Finally, in reaching its decision the Court noted that the President needs exclusive recognition power in order to be effective. If the Court believes that effectiveness is the touchstone of exclusive executive authority granted by the Constitution, than Zivotofsky is truly a blockbuster case and one that the executive will cite for generations to come in order to maximize its authority. I suspect that the Court will be forced to clarify and perhaps narrow this rationale in some future case, but time will tell.

Victor M. Hansen

Recent Supreme Court Term: Los Angeles v. Patel


Students in constitutional law come to learn what seasoned constitutional lawyers know: many cases implicating the Constitution do not turn on the document’s text. Which is not to say the text isn’t important, just that, in certain areas of constitutional law, the doctrinal tests the court has devised to implement textual commands often take precedence over the words themselves. Consider the Fourth Amendment, as demonstrated by the recent decision in Los Angeles v. Patel, involving the scope of protection afforded business records.

The case concerned a challenge to a Los Angeles ordinance that compelled hotel operators to keep records containing specified information provided by guests, and to make these records available to police officers “for inspection” on demand. The law made the failure to make the records available for inspection punishable by up to six months in jail and a $1,000 fine.

Writing for the majority, Justice Sotomayor concluded the law was unconstitutional under the Court’s Fourth Amendment jurisprudence. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and states that “no Warrants shall issue, but upon probable cause.” The Court has long interpreted this provision to mean that, absent a warrant based upon probable cause as determined by a neutral decisionmaker, a search will be deemed unreasonable. There is an exception to this rule for administrative searches, such as those contemplated by the Los Angeles law.

For an administrative search to be constitutional, Sotomayor explained, “the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” Absent this opportunity, searches under the ordinance potentially could exceed statutory limits or become tools for harassment. An opportunity to obtain such review is a minimal protection—there would be no need for probable cause to search—and, Sotomayor concluded, could be provided without “imposing onerous burdens on those charged with an administrative scheme’s enforcement.” She also noted that searches authorized by the Los Angeles law did not fall within the narrow category that involve closely regulated businesses, in which the government need not afford any opportunity to object to the search.

In dissent, Justice Scalia would have none of it. He argued that “[t]he Court reaches its wrongheaded conclusion not simply by misapplying … precedent, but by mistaking … precedent for the Fourth Amendment itself.” The only constitutional question, in his view, was “whether the challenged search [was] reasonable.” He concluded, “the limited warrantless searches authorized by Los Angeles’s ordinance [were] reasonable under the circumstances” because, in large part, hotels are “closely regulated businesses.”

Scalia’s approach to the Fourth Amendment begs a question: what does it mean for a search to be constitutionally reasonable?

The constitutional text, of course, does not define reasonableness. And so—as noted above—the Court has held a search as reasonable if it is supported by a warrant based upon probable cause. This is the default rule.

But this is not the only way to implement the reasonableness requirement. Professor Tom Clancy has concluded that the Framers likely understood “reasonableness” to require government agents to have a reason to search a particular person or place. (See The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. MEMPHIS. L. REV. 483 (1995)). This is in contrast to the regime authorized under the Los Angeles ordinance, which permitted law enforcement to search hotel records arbitrarily—and, as the Court noted, as “a pretext to harass business owners.”

We should prefer an approach to reasonableness that will not work to diminish the scope of the Fourth Amendment’s commitment to privacy. An understanding that search regimes need only be reasonable, in a rational-basis way—as suggested in Scalia’s dissenting opinion—eventually will undermine that commitment. For the scope of this kind of reasonableness could be quite elastic—if arbitrary records searches are reasonable in the context of hotels, why not in the context of any business where members of the public may congregate? Or any business, like hotels, that is subject to generally applicable regulations?

At bottom, there is an important difference between viewing a rule as essentially reasonable simply because it serves a legitimate government interest—in Patel, deterring criminals from operating on hotel premises—and viewing it as essentially unreasonable because, regardless of its salutary purpose, it allows police to search indiscriminately. Judges are understandably reluctant to critically review legislative rules under the former approach, while the latter gives them an objective and consistent basis upon which to ensure that the constitutional protection of privacy is not diminished to a point of irrelevance.

Regulation of hotels is important and the deterrence of criminal activity arguably more so. Under the Fourth Amendment, courts should not allow privacy interests—including those of businesses—to be sacrificed in an effort to achieve either.

Lawrence Friedman

May 5, 2015

Why You Should be Interested in Trusts and Estates Law

Suppose that S, scion of a prominent wealthy family but a bit of a ne’er do well, drunkenly and negligently wrecks his car, causing severe injury to innocent victim, V. V sues and wins a judgment against S, who is the beneficiary of a trust worth millions of dollars. Is V likely to collect on this judgment?

Not against the trust. Although S continues to benefit from the trust, the document that created it contains a “spendthrift clause.” Under the widely adopted Uniform Trust Code (UTC), a few simple words in the trust document numinously protect its corpus from claims of almost all third parties, including tort victims.

Should you be interested in trusts and estates law? Recently, two prominent economists weighed in on a similar query with regard to economics. Ha-Joon Chang’s 2014 book, Economics: The User’s Guide,  encouraged his readers to develop some facility with economic questions, the answers to most of which depend on the application of moral values and political views. His point was that when non-economists fail to engage economic questions, we get solutions skewed to the political biases of a handful of economists.

Likewise, French economist Thomas Piketty warned  that “the distribution of wealth is too important an issue to be left to economists, sociologists, historians, and philosophers.” Instead, he urged, everyone should be interested and involved. Piketty reported that inherited wealth accounted for at least 50–60% of total private capital in the United States in the late twentieth century and accounts for a much larger share today.

As in economics, moral and political values decide many questions about our laws governing inheritance. And if inheritance stands to play an increasing role in who gets what, as Piketty claims it will, questions of inheritance are crucial in determining how our resources are allocated.

Upton Sinclair wrote that it’s “difficult to get a man to understand something, when his salary depends on his not understanding it.”  Contemporary psychological studies confirm that what is now called “motivated reasoning” pervades our decision-making process. Rare is the person who adopts a political perspective or moral view that runs counter to his or her own livelihood. Trusts and estates lawyers make their living helping families hold onto their wealth across generations, meaning they are likely to be biased on questions regarding inheritance. Their vested interest runs towards ensuring entrenchment, rather than disbursement, of wealth. And they have outsized influence on the substance of inheritance law because they are motivated to give it their attention.

Let’s revisit S, the wealthy young man who negligently injured V. After V wins her judgment, Lawyer L defends S’s trust interest against V’s attempt to levy against it, but remains unpaid after billing S many times for his legal work. Fed up, L goes to court and gets a judgment against S for his fees. Is L likely to collect against the assets of the trust? Yes, because while the UTC shields the assets of the trust from almost all creditors’ claims, making it impenetrable by V, it opens the door to “a judgment creditor who has provided services for the protection of a beneficiary’s interest in the trust.”  Meanwhile, V remains uncompensated for her injuries.

Kent Schenkel

April 22, 2015

Creeping Doctrines / Shifting Fees


Too often the catch-all term “intellectual property”— useful in describing practitioner specialty areas, law school courses, and text books, among other things— serves a subtly insidious function. It suggests that those discrete bodies of law which it encompasses—roughly, copyright, trademark, patent, and trade secret law—have fundamental commonality. Not only, it implies, do those legal areas overlap, but more critically that those overlaps somehow count for more than any divergences.

This has a real effect on the development of the law. Courts are quick to presume that a rule applicable to one area of intellectual property ought to apply to all. The burden, it seems, is on one challenging such an extension to show why a given area of law, say trademark law, is distinct enough from another, such as patent law, so that a rule for one should not apply to another. The courts, for instance, over the past decade worked to extend a rule from a 2006 patent case that denies prevailing patent infringement plaintiffs entitlement to injunctive relief (eBay Inc v. MercExchange) to copyright and trademark law. We are now seeing that process inexorably repeat itself with respect to statutory fee-shifting.

To be sure, there is a clear, natural and forceful argument as to why the fee-shifting rules for patent law ought to be the same as those in trademark law. To start with, federal trademark law’s Lanham Act and the U.S. Patent Act contain identical statutory fee-shifting language. Namely, “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” When the Lanham Act was amended in the 1970s to add this provision, moreover, the Senate committee proposing the change made clear that it was intending to make trademark law more like patent law (which had operated under such language since the 1950s).

This apparently deliberate act of statutory duplication has led two appellate courts recently to conclude, with relative ease, that the two provisions should be interpreted in the same way. More specifically, both suggested (one in a holding last fall and one in dicta a little over two weeks ago) that the U.S. Supreme Court’s recent clarification of the meaning of the statutory language in the Patent Act in Octane Fitness, LLC v. INCO Health & Fitness, Inc., ought to apply with equal force to the Lanham Act. See, respectively, Fair Wind Sailing, Inc. v. Dempster and Slep-Tone Entertainment Corp. v. Karaoke Kandy Store, Inc. The Supreme Court itself appeared to telegraph the propriety of such as result when it cited, in its Octane opinion, a trademark case and noted the “identical” nature of the two provisions.

The issue, though, is hardly as straightforward as these courts make it seem. There remain strong contrary arguments against conflating the two standards. Although it is of course a rule of statutory interpretation that similar language should be construed in a similar way, “pari passu,” that rule is usually coupled with the limitation that it applies to statutes enacted “for the same purpose.” The primary purposes of the Lanham Act are to make consumer purchasing decisions easier and safer by insuring the integrity of brand information in the marketplace and to protect brand good-will from misappropriation (i.e., to protect consumers and brands). The primary purpose of the Patent Act, by stark contrast, is to encourage the creation and disclosure of new inventions by granting exclusive rights for limited times to inventors (i.e., to incentivize innovative activity). As a direct consequence of these differing purposes, for well over a century the U.S. Supreme Court has held that the foundational Patent and Copyright Clause of the U.S. Constitution, Article I, Section 8, Clause 8, does not apply to trademark law.

Second, Octane was decided in an atmosphere steeped in the purported problem of patent trolls—those much-maligned entities alleged to assert frivolous patent claims without actually making or selling patented products, while often engaging in litigation misconduct. In rejecting the stingy objective baselessness and frivolity standards previously used by the Federal Circuit for awarding attorney’s fees, the Octane decision opened the door to more opportunities for prevailing defendants to receive attorney’s fees. This should, in the words of Octane, deter a patent plaintiff from bringing a borderline case that “stands out from others with respect to the substantive strength of a party’s litigating position” or litigating them in an “unreasonable manner.” Octane itself, for instance, was a case where a prevailing defendant claimed a right to attorney’s fees against a losing patent-owning plaintiff that had asserted a weak patent infringement claim.

Trademark law, though, has had nothing close to the “troll” problems faced by patent or even copyright law because it contains built-in checks against trolling. A trademark infringement plaintiff must actually use its trademark to have rights in it, and must show a likelihood of confusion in a real marketplace to prevail on its claim.

Consistent with this view, the (remarkably terse) legislative history of the fee-shifting amendments to the Lanham Act makes clear that they were designed firstly to aid prevailing plaintiffs seeking attorney’s fees against counterfeiting defendants. In fact, the Senate Report contains a definition of “exceptional cases” that defines the term using language only relevant to losing defendants (“i.e., in infringement cases where the acts of infringement can be characterized as ‘malicious,’ ‘fraudulent,’ ‘deliberate,’ or ‘willful.’”). Although the statutory language clearly applies to prevailing parties of either stripe, this legislative emphasis on preventing counterfeiting by trademark defendants at a minimum counsels against knee-jerk extensions of a rule designed to reign in patent plaintiffs.

All of this is not meant to suggest that there aren’t good reasons for applying the Octane standard to trademark cases. Some might even suggest that general civil litigation in the U.S. would benefit from giving district courts more discretion to award attorney’s fees to all prevailing parties. But it does counsel against an all-to-easy rush to superimpose patent or copyright law rules onto trademark law. All three may be forms of “intellectual property,” but hopefully courts considering the issue (such as the United States District Court for the Northern District of Ohio as it picks up the Slep-Tone case on remand) will not make the mistake of presuming that what is good law for one must be so for the others.

Peter Karol









April 21, 2015

Memory Battles and National Human Rights Trials

This post originally appeared on the IntLawGrrls blog, available here.

I teach transitional justice at New England Law | Boston, and this past week I began the unit on national human rights trials. This topic is one of my favorites due largely to my experience observing national human rights trials like that of former Peruvian President Alberto Fujimori and former Guatemalan leader José Efraín Ríos Montt. Fujimori is currently serving a twenty-five year sentence in Peru for his role in serious human rights crimes during the 1990s while president; while Ríos Montt has been under house arrest awaiting the resumption of his trial since 2013, when the Guatemalan Constitutional Court pointed to procedural errors as a reason to annul his conviction for crimes against humanity and genocide for his role in massacres of indigenous communities in 1982–83.

While observing both trials, I was fascinated by the media coverage of these proceedings and how the local coverage of these historical trials impacted public debates outside of the courtroom. My own research and writing on this topic seeks to respond to the fact that, generally speaking, we often forget the important role of media in transmitting the content of human rights trials although it can dramatically influence the overall transitional justice process.

In my recent article, “Memory Battles: Guatemala’s Public Debates and the Genocide Trial of José Efraín Ríos Montt,” I conducted a systematic evaluation of news reports and opinion pieces from local news outlets to study the nuances of Guatemala’s debate over whether or not the country had suffered a genocide. What I discovered was a “memory battle” about interpretations of the past war. Based on these findings, I challenge the idea that transitional justice mechanisms will naturally lead to a collective memory that results in a widespread societal condemnation of human rights violations. Instead, I draw from the field of memory studies to debunk the assumption that there is a smooth path towards a national narrative about atrocity. Different societal actors accompany the transitional justice process, actively and purposefully seeking to use judicial and non-judicial justice mechanisms to construct public memories that fit within their own interpretations and political agendas resulting in many contested versions of the past.

This situation presents a paradox for transitional justice advocates: on the one hand, tolerating expression of different interpretations and opinions of the past promotes the ideals of democracy. However, when versions of the past justify or explain away atrocity, they challenge the political project of building a culture of rights and the rule of law. I decided to examine how this paradox plays out when a transitional justice project includes national criminal trials given that most scholarship focuses more directly on the relationship between truth commissions and memory. I found that, up until now, scholars often wrote about memory and trials based on theoretical speculations as opposed to empirical research. This narrow focus can best be explained by the fact that transitional justice evolved as a response to the inability or unwillingness to conduct criminal trials, a trend that has begun to change only in the last decade with a rise in national human rights trials especially in Latin America.

I conclude my article by arguing that a country’s long-term interpretation of its past, and its agenda for the future, depends on which camp of memory-makers in a transitional justice setting wins this memory battle. It is my position that a collective memory is the first step towards cultivating its collective consciousness, which leads to a conscience that can influence how its members buy into this culture of rights, accountability, equality, and other essential attributes to sustainable peace. Importantly, it is often the nature of the memory making process itself, as opposed to a final memory product that predicts the outcome of memory surrounding national human rights trials.

Based on my close study of the media and memory-making in transitional justice settings, I strongly recommend that any new transitional justice project should consciously contemplate the role of memory production in its design and implementation.

Lisa J. Laplante

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.