"Zombie" Constitutionalism

Talk about bad and shopworn ideas ("zombies" to use Paul Krugman's nice formulation): the proposed amendment that would enable states to repeal any federal statute if approved by two-thirds of the state legislatures is a notion that came and went, in various forms, in the 18th and 19th centuries. First it was called Nullification, and then it morphed into the Secessionist craze whose 150th anniversary we are about to commemorate. The Civil War was supposed to have relegated those ideas to the proverbial dustbin of history.

This nutty notion -- if adopted -- would transform the entire structure and character of our constitutional system. The difference between the Constitution (which supporters of this amendment say they revere) and its predecessor -- the Articles of Confederation -- is that the federal government under the Constitution framed at Philadelphia in 1787 is an independent entity whose laws act directly upon the people and is not dependent upon the approval or disapproval of the states. To provide states with a mechanism for disapproving of federal laws would not only undermine the institution of Judicial Review, but it would fundamentally alter the architecture of American government as we have come to know it in the past two hundred years.

This is a very bad idea whose time came and went centuries ago. It should be so regarded.

George Dargo

Targeted Killings and Judicial Review, continued

My colleagues Victor Hansen and George Dargo last week debated the dismissal of a federal lawsuit brought by Nasser Al-Aulaqi in respect to the targeting of his son—an American citizen—by the President of the United States for supporting Al Qaeda in the Arabian Peninsula. Hansen and Dargo debated the merits of a secret court to review targeting determinations. Professor Hansen argued that the law of armed conflict and self-defense place limits on the President’s discretion to target individuals for assassination, while Professor Dargo maintained that, absent Congressional authorization, the President lacks the authority under Article II of the Constitution to target American citizens.

This is an important issue and an important debate; the weight of the United States government behind targeted assassination is not a policy to be taken lightly.

Traditionally, the President has been regarded as having the discretion to make strategic and tactical battlefield determinations, a consequence of his commander-in-chief power under Article II—a discretionary power triggered by a Congressional authorization to use force, or an exigent circumstance that warrants military action, such as an attack on the United States. Congress authorizes the conflict, but the President controls the military; accordingly, Congress could not direct the President to, for example, position troops in a particular location, or deploy forces in a particular way in the midst of an authorized armed conflict.

Closer to home, Congress does not need to declare a war on crime to authorize state or federal agents to take down a gunman who has opened fire in a crowded public square—those state and federal agents have the authority to respond to the exigency posed by that gunman. This is not to say, of course, that state and federal agents legally could plan to assassinate that gunman in advance, or that Congress could authorize them to do so, for it is far from clear that a “war on crime” is an armed conflict in the same way that the war against terror is an armed conflict.

Further, there is some question here whether Al-Aulaqi poses the same kind of threat as our hypothetical gunman. But, as Professor Hansen has argued, the judiciary does not have the competence to second-guess that targeting decision—that is, to make the determination, based upon an evaluation of confidential intelligence information, that Al-Aulaqi is doing more than simply inciting opposition to the United States.

At the end of the day, the most important question raised by the Al-Aulaqi case is whether targeted assassination, as a state policy, is morally justifiable. But I am not sure that is a question that can be answered by a court interpreting the due process clause. At the same time, we should all hope it is a question to which the President and his advisors devote no small amount of consideration.

Lawrence Friedman

Targeted Killings and Judicial Review

President Obama’s program of using drone attacks, often referred to as targeted killings or targeted assassinations, was recently challenged in federal court by the father of one of the alleged targets. Nasser Al-Aulaqi brought the suit on behalf of his son, Anwar Al-Aulaqi. Anwar Al-Aulaqi is a dual citizen of the United States and Yemen and he is believed to be an active member of Al Qaeda in the Arabian Peninsula. The lawsuit claims that the President’s unilateral decision to target Al-Aulaqi without some form of judicial process is a violation of his 4th and 5th Amendment rights and is a violation of the Alien Tort Claims Act. Last week a federal court dismissed the suit based upon lack of standing and the political question doctrine.

In its decision, the court did note that the case raised challenging questions, including whether the “Executive can order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization.” A New York Times Op-Ed following the dismissal of the case called for the creation of a secret court similar to the FISA court now used to authorize wiretaps of foreign agents within the United States, to conduct a judicial review of the terrorist suspect targets chosen by the President before any targeting could take place. In the paragraphs below Professors Dargo and Hansen debate the creation of such a secret court.

Professor Hansen: I agree that some scrutiny is in order, but I disagree that the scrutiny should come from the courts. Such a review is outside of a court's competence and federal judges, even holding hearings in secret, are not competent to make -- or review -- targeting determinations. In dismissing the Al-Aulaqi case the court correctly noted, “To be sure, this Court recognizes the somewhat unsettling nature of its conclusion -- that there are circumstances in which the Executive's unilateral decision to kill a U.S. citizen overseas is ‘constitutionally committed to the political branches’ and judicially unreviewable. But this case squarely presents such a circumstance.” Even having some kind of secret process reviewed by a FISA type court would not address very real concerns that the Executive may need to act quickly because of the nature of the threat. It would be unprecedented and unwise for courts to get involved in this level of targeting decisions. Should courts review all battle plans before execution to make sure that they are in compliance with the laws of war?

The primary limits on the President's authority in this context come first from the inherent right of self defense and from the laws of armed conflict. Certainly there is an open question as to the contexts in which the law of armed conflict should apply. For example, should its limits be tied to the territory where most of the actual fighting is taking place? Or should the law of armed conflict and the right to target an individual like Al-Aulaqi follow the individual terrorist and allow him to be targeted wherever he or goes? While there are no clear answers to these questions, the fact that these questions are being asked suggests that the law of armed conflict and the inherent right to self defense constrain the President's authority.

Congress and not the courts should be checking Presidential authority in this instance. Congress has the constitutional authority, the competence, and the power to place limits on such a program if Congress believes that the President is exceeding his authority.

Professor Dargo: I do agree that Congress should attempt to regulate this in some way. But your major approach -- to look at it through the prism of "the laws of war and armed conflict" -- I think is mistaken. As I see it, it should be viewed from the context of basic constitutional principles which govern the government and protect individual American citizens. Ours is a government of limited and specified powers, and even though those of the President are not as enumerated as those in Article I, this does not mean that the President's powers are unlimited. The basic principle is that the federal government -- any of its branches -- can only act upon authority which has been granted to it and not by some unlimited and vague assertion of necessity. Under Article I, Section 8 (necessary and proper clause), the Congress can give powers to the Executive in order to enable it to carry out its implied powers -- for example, to protect the country. That would at least give it some color of respectability under such landmark cases as Youngstown Sheet and Tube (Justice Jackson's concurring opinion). Then, of course, there is the rights aspect -- rights which are enumerated as a further check on the exercise of unlimited power. And the right in question, which is also part of the equation, of course would be Due Process. As the Times editorial notes, and the judge seems to say or imply, it makes no sense to require process to authorize electronic surveillance, but not to take away life. I just find that your approach -- viewing this through the lens of the laws of war -- does not adequately address the full dimensions of this issue.

Professor Hansen: No question that there are many dimensions to this issue. So let’s look at this issue in a more traditional battlefield context. Assume that during World War II, a U.S. solider decided to abandon his unit and join the German Army. Certainly, under the law of armed conflict and the inherent right to self defense, that solider could now be targeted and killed by U.S. forces without any resort to judicial review. If the law of armed conflict and the inherent right to self defense similarly applies in the Al-Aulaqi context, then the outcome should be the same. If, on the other hand the law of armed conflict and the inherent right to self defense do not apply (and that is an issue for debate), then the President has exceeded his authority. The point here is that the Executive’s authority is not unbounded. The check comes by way of the law of armed conflict and the inherent right to self defense. Congress, as the other political branch with the constitutional authority to oversee the Executive’s actions, not the courts, should act if it believes that the President has exceeded his authority.

Professor Dargo: We seem to be in agreement that Congress should establish some sort of mechanism for the purpose of authorizing executive action in this circumstance. The AUMF (Authorization for the Use of Military Force) adopted soon after the September 11th attacks are not sufficient for this purpose. To hold that the AUMF is sufficient would be to give a "blank check" to the President to conduct the so-called War on Terror against any persons, anywhere, anytime for any purposes he deems a threat to the security of the United States. I believe that Congress had no such intention back in 2001. Accordingly, in the absence of any other relevant authorizing power, then the President's action in ordering targeted assassination would be acting on the basis of his own Article II powers which, under Justice Jackson's formulation, would be a very weak reed indeed. For these reasons, I believe that targeted assassinations of American citizens in places like Yemen are beyond the powers of the President.

Professor Hansen: While I agree that the AUMF is not a “blank check” it is certainly not a “bounced check” either. If we say that in passing the AUMF Congress did not anticipate that the President would use the authorization to capture and kill those who pose a threat to the United States, I’m left to wonder what the AUMF authorized.

Is the Health Care Law Beyond the Commerce Power?

In his decision this week in Virginia v. Sebelius finding the Patient Protection and Affordable Care Act unconstitutional, United States District Judge Henry E. Hudson explains that Congress cannot, under Article I’s Commerce Clause, compel individuals to purchase health care insurance by assessing them a penalty if they choose not to do so. He distinguishes this case from Wickard v. Filburn. In that case, the Supreme Court concluded that Congress can regulate the activity of the individual wheat farmer, because such activity in the aggregate has a substantial effect on interstate commerce even if the wheat transactions of each individual farmer do not.

But wouldn’t there be a significant effect on interstate commerce—as Congress believes—if individuals declined to purchase health care insurance (assuming they are not otherwise covered)? Indeed, isn’t that the whole point of the new health care law—to avoid that effect by creating incentives, through the assessment of a tax penalty, for individuals to purchase coverage?

The answer to the second question is yes—but the answer to the first, according to Judge Hudson, depends on the activity in question. In his view, Congress’s commerce power only reaches activity in a market, not the decision not to participate in a market. Yet in Wickard, the Court allowed Congress to reach wheat farmers who chose not to sell the wheat they produced—just as in this case, where Congress is trying to reach individuals who have chosen not to purchase their own health insurance.

Not so fast, Judge Hudson tells us. In Wickard, the individual farmers could have avoided regulation entirely by choosing not to engage in the production of wheat, while in this case, he argues, individuals cannot avoid the regulation: they must either purchase coverage or pay the penalty.

This reasoning has a superficial appeal, but it ignores the fact that, unlike the farmer who chooses not to grow wheat, no individual living in the United States can help being a part of the health care market. If you choose (for whatever reason) not to have health insurance coverage, that does not mean that you are not participating in the health care market—and it does not mean the health care services you will inevitably receive at some point in your life have no economic value. Rather, you have simply chosen a different way to structure your particular health care transaction—namely, by relying upon the rest of us to pay for the consequences of your decision not to have coverage.

In the end, you may have chosen not to pay for health insurance coverage, but you have not chosen to avoid an economic transaction. Surely Congress has the authority under the Commerce Clause to regulate the aggregate effect on interstate commerce of all those individuals who have chosen to engage in that particular economic transaction.

Lawrence Friedman

More ruminations on judicial elections

Last week's general election proved to be a tough day for state courts and state court judges. Despite support from the state legislature and national luminaries such as Sandra Day O'Connor, Nevada voters rejected a ballot initiative to move away from contested judicial elections and toward a merit selection system. (I previously blogged about the dangers of judicial elections and the benefits of the Nevada initiative here.) The proposed merit system would have instituted careful screening of judicial applicants and evaluation of existing judges, both of which were in the public interest. Sadly, the public itself was not interested.

Other states saw issue politics directly impact judicial retention elections. In Iowa, as my colleague Lawrence Friedman noted last week, three supreme court justices failed in their retention bids after voters made the election a referendum on that court's ruling on same-sex marriage. Opponents of the three justices spent approximately $800,000 to secure their removal, nearly all of it coming from sources outside the state. In Florida, two supreme court justices were targeted by tea party groups after they ruled that a proposed initiative exempting Florida from the new national health care legislation did not meet state ballot requirements. While these justices were retained, they received lower retention rates than their counterparts who were not directly targeted.

Not all news was bad, however. In Colorado and Kansas, voters looked past similar issue-oriented campaigns designed to oust members of their respective highest courts, and chose to retain a host of thoughtful and experienced jurists. And in many other states, retention elections proceeded without much commotion.

What to make of these results? We should be cautious about drawing too many comparisons between states, since the dynamics of each state's electorate can be very different. But it is hard not to notice that states with strong, public judicial performance evaluation (JPE) programs tend to be more immune from politicized retention elections than states without such programs. JPE offers voters comprehensive, neutral evaluations about each judge's performance with respect to the process of judging. In other words, JPE encourages voters to retain (or not retain) a judge based on the judge's demonstrated ability to communicate clearly, treat parties fairly, manage his or her docket, and behave appropriately in the courtroom. The substance of individual decisions never comes into play during the evaluations. JPE therefore asks voters to consider the entire context of the judge's role, not just a particular substantive decision.

In Kansas, comprehensive JPE may have blunted the campaign to remove Justice Carol Beier on grounds related to abortion, and in Colorado the same type of extensive JPE program may have caused voters to disregard the "activist judge" rhetoric of that state's unsuccessful "Clear the Bench" campaign. By contrast, the three Iowa justices had no formal, process-based evaluation to help contextualize their overall work on the bench. They now join a growing club of former state supreme court justices who have lost retention elections over the past 25 years -- Rose Bird, Cruz Reynoso and Joseph Grodin in California, Penny White in Tennessee, and David Lanphier in Nebraska -- none of whom had JPE available to them at the time of their failed retention bids.

JPE is not a cure-all. To work, the evaluations must be fair, thoughtful and accessible, and voters must actually read them and incorporate them into their decision-making. But the potential upside of JPE warrants at least a closer look in other states. Perhaps in the next election cycle, we can celebrate informed voting rather than bemoaning the impact of special interest campaigns.

Judging Judges in Iowa

On election day 2010, Iowa voters removed three state supreme court judges from the bench because those judges had joined in the court’s unanimous opinion in Varnum v. Brien, the 2009 decision holding unconstitutional, under the state constitution, the state’s prohibition against same-sex marriage. As the New York Times reported, “[a]fter years of grumbling about ‘robed masters,’ conservatives demonstrated their ability to target and remove judges who issue opinions they disagree with.” The Times also reported that similar ouster campaigns had begun on a variety of issues, including a woman’s right to choose, taxes, tort reform, and health care.

When the United States Supreme Court rules in favor of upholding an individual right and against the legislature that enacted the law undermining that right, there is usually some cry of outrage at the temerity of “activist” judges “legislating from the bench.” Given the cases in which the cry of activism is made—Roe v. Wade, of course, but also Bush v. Gore and District of Columbia v. Heller—it seems fair to describe an activist decision as one whose result you just don’t like.

The difference between the U.S. Supreme Court and the Iowa Supreme Court—indeed, most state supreme courts—is that we cannot remove the judges who sit on the former court quite so easily. To remove a federal judge from the bench, the House of Representatives must issue articles of impeachment and the Senate must convict. This has happened only rarely, and Congress has never been able to muster majorities in favor of ousting a federal judge because of disagreement with the substance of a particular decision.

But in Iowa, the situation is different. There, judges must face retention elections, and this year well-funded groups—primarily from outside the state—that disagreed with the result in Varnum urged citizens to express their outrage at the polls. They did so, in the words of one person who organized opposition to retaining these judges, to send a message to the court’s other and future members: be careful about how you decide certain cases if you would like to keep your job.

The framers of the U.S. Constitution likely would have looked askance at the suggestion that the enjoyment of individual rights like due process and equal protection of the law should essentially be subject to a majoritarian veto. A primary reason for a separate and independent judiciary is the protection of individual rights from the whims of the majority. Surely those groups opposed to same-sex marriage would not want their right to marry, or to protest marriage, put to a vote. They might not like the outcome. The time has come, in Iowa and elsewhere, to reconsider the wisdom of any method of selecting judges that undermines their ability to enforce basic constitutional values.

Lawrence Friedman

Alleged Lawyer Greed

Are lawyers greedy?

The charge that lawyers are motivated by greed is one of the most widespread public complaints about the profession. Over the past two decades, more than half of Americans surveyed have agreed with the statements: “lawyers are greedy,” “lawyers make too much money,” and “it is fair to say that lawyers charge excessive fees.” In 2002, the polling organization Leo J. Shapiro and Associates (LJS) probed public attitudes about lawyer behavior and motivation. In an online report summarizing its findings, LJS has explained:

Of all the criticisms that consumers [who have previously hired lawyers] raise about their personal experiences with lawyers, the greatest number of complaints arises around lawyers’ fees. Consumers say that lawyers charge too much for their services; are often not upfront about their fees; and are unwilling to account for their charges or hours… Consumers complain about fees charged by all types of lawyers.

Legal scholars also often accuse the profession of greed using as evidence disciplinary opinions involving practitioners who have charged high fees, overbilled or misused or stolen client funds. The charge of greed is one that lawyers should take seriously. If lawyers are routinely cheating clients, then lawyer behavior is routinely both tortious and criminal. Drastically enhanced policing of the profession would be warranted were the charge to be verified. Lawyers should also be aware that one of the principal reasons Americans avoid seeking legal help is the belief that lawyers are greedy.

But are practicing lawyers inordinately grasping business people? The data do not support this proposition. Among other things, available information suggests:

(1) The real average hourly fee charged by private practitioners in any given state is likely to increase at an average compounded rate of less than 1% per year. Increases of this size have occurred over periods as long as many decades in most states concerning which I have gathered data. Average fees have not increased drastically over time in any state I have looked at.

(2) Since 1991, the real average hourly fee billed by law firms and lawyers for paralegal work has increased at less than 2% per year.

(3) The productivity of individual lawyers and legal assistants has increased over recent decades as technology has allowed them to increase the volume of work produced per hour. It is understandable that real hourly fees charged by practitioners have been rising – at least at the common and modest rate of increase of less than 1% per year.

(4) Lawyers often do not charge for their services. Clients are not charged for many reasons including these: pro bono services have been provided, clients are friends and relatives, clients have received free initial consultations, and clients have lost contingent fee cases. Fairly frequently, a lawyer charges a client for work done on a complicated matter but charges nothing for work done on simple unrelated matters. Additionally, the percentage of fees that are uncollectable is high for the majority of lawyers, and this is not a recent phenomenon. Uncollectable fees as a percentage of fees charged has been high for most lawyers for decades. The average lawyer does not pursue all unpaid fees aggressively.

(5) The average lawyer does do a significant amount of civic and pro bono legal work, claims by some observers to the contrary notwithstanding.

The impulse of greed afflicts every person. The best that any of us can do is try to control it, limit its manifestations, and counterbalance selfish behavior with acts of altruism or kindness. A great deal of empirical evidence suggests that most private practitioners behave simply like most private business people behave. They try to control the prices they charge in order to better compete; they strive to be as productive as possible; they provide free services most often to generate or keep business but very often to help the poor and underserved. The average lawyer behaves like an ordinary and prudent business person. The charge that the profession is overflowing with greedy practitioners is nonsense.

Paul Teich

Whither Peremptories Part Deux

In his post earlier this week, my colleague, Lawrence Friedman, highlights Chief Justice Margaret Marshall’s concurrence in Commonwealth v. Rodriguez, where she ponders whether it is time to either eliminate or further restrict the use of peremptory challenges. The use of peremptory challenges, particularly by the prosecution in a criminal case against members of a cognizable group, certainly can create all kinds of mischief.

The fear, of course, is that the prosecution will use these challenges to eliminate members of a minority race from the jury. This problem is particularly acute when there are few minority members on the jury venire and when they share the same racial or ethnic background with the defendant. The Supreme Court sought to address these concerns in Batson v. Kentucky. There the Court created a three-step burden shifting mechanism whenever the prosecutor uses a peremptory challenge to eliminate a member of a cognizable group.

First, the defendant must show that he or she is a member of a cognizable racial group and that the prosecutor has used the peremptory challenge to remove members of the jury that share the defendant’s race. If this is established, the defendant is entitled to the irrebuttable presumption that the exercise of peremptory challenges constitutes a practice that permits those who are of a mind to discriminate to do so. Finally, the defendant must show that these facts and circumstances raise an inference that the prosecutor used the peremptory challenge to exclude the venireman from the petit jury on the account of the venireman’s race. Once this prima facie showing is made, the burden shifts to the prosecution to show there was a race-neutral reason for exercising the peremptory challenge against the veniremen.

Some have contended that requiring the prosecutor to articulate a race neutral reason for the challenge effectively eliminates the prosecutor’s peremptory challenge of racial minorities. However, experience, and subsequent Supreme Court opinions have shown that, even after Batson, the prosecutor’s peremptory challenge is alive and well and prosecutors intent on using the peremptory challenge to eliminate jurors based on race often can convincingly mask their reasons.

Perhaps what Chief Justice Marshall laments is that it is still all too easy for the prosecution to do an end-run around the Baton protections. In looking for ways to enhance these protections, Chief Justice Marshall would do well to consider two additional Batson enhancements found in the military context.

First, the military has eliminated the requirement that the defense make a prima facie showing of discrimination. Under military legal precedent, if the defendant is a member of a cognizable group, whenever the prosecution exercises a peremptory challenge against a member of the defendant’s race, upon objection by the defense, the prosecution must articulate a race neutral reason for the challenge. In essence, any time the prosecution uses a peremptory challenge to eliminate a cognizable member of the defendant’s racial group the presumption of improper motive exists. This automatic presumption alone forces the prosecution to think long and hard about the way they exercise peremptory challenges.

Second, the prosecution’s race neutral reason must not only be genuine, it cannot be unreasonable or implausible. This requirement that the race neutral reason be both reasonable and plausible is a departure from the Supreme Court’s holding in Purkett v. Elm, which only requires the prosecution’s reason to be genuinely not racially motivated. The problem with that approach, of course, is that racial motivations can easily be masked by seemingly genuine but implausible reasons. Accordingly, military case law imposes this further restriction on the prosecutor’s claimed race neutral reason to help prevent an end run around Batson’s requirements.

It seems to me that these additional protections strike a fair balance and preserve the legitimate use of peremptory challenges and they provide valuable guidance to courts seeking to give real meaning to Batson’s protections—all of which may alleviate Chief Justice Marshall’s concern that the process of discovering Batson violations is too time-consuming to make it worthwhile.

Victor Hansen

Whither Peremptories?

In a recent decision, Commonwealth v. Rodriguez, the Massachusetts Supreme Judicial Court considered whether a prosecutor’s use of a peremptory challenge to remove a prospective Hispanic juror violated the state and federal constitutional prohibition against excluding jurors “solely because of bias presumed to derive from their membership in discrete community groups.”

The prosecutor argued that he exercised a peremptory challenge against the juror because he found troubling “not only the juror’s failure to reveal her own and her son’s experiences in the court system, but her express indication to the contrary on the juror questionnaire.” The court concluded that the prosecutor’s use of the peremptory in this instance was not unconstitutional, given his legitimate and race-neutral concern about the prospective juror’s ability to follow simple instructions “in the context of a trial alleging murder in the first degree and involving two defendants.”

In a brief concurring opinion, Chief Justice Margaret Marshall reiterated her concern about the continued use of peremptory challenges. She stated that, “rather than impose on trial judges the impossible task of scrutinizing peremptory challenges for improper motives, it is time either to abolish them entirely, or to restrict their use substantially.” (Quotation omitted.)

Chief Justice Marshall accordingly stands in contrast to Justice Antonin Scalia, who in the 1994 decision J.E.B. v. Alabama decried the Supreme Court’s extension of prohibited bases for the exercise of peremptory challenges to include gender. Justice Scalia lamented the regulation of peremptories via equal protection, arguing that decisions such as J.E.B. did damage to the peremptory challenge system,

which loses its whole character when (in order to defend against “impermissible stereotyping” claims) “reasons” for strikes must be given. The right of peremptory challenge “is, as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.” The loss of the real peremptory will be felt most keenly by the criminal defendant, whom [the Court has] until recently thought “should not be held to accept a juror, apparently indifferent, whom he distrusted for any reason or for no reason.”

The question is whether we have reached a time when we should no longer tolerate the use of peremptories that may be based upon undetectable irrational prejudice. Back in the day, peremptory challenges existed in the context of a jury pool comprised entirely of similarly-situated members of the community—all white, all male. Thus arbitrary juror selection could not be based upon prejudices we now view as suspect—suspect today because those prejudices may deny a defendant or a juror the constitutionally mandated equal protection of the laws.

The end of peremptories, as Chief Justice Marshall well knows, would mean more efficient jury selection. For cause challenges allow for reasoned argument and rebuttal—not to mention transparency—in all the ways that the use of peremptories does not.

But there may yet be a use for peremptories, as my colleague Vic Hansen explains in a forthcoming article, “Avoiding the Extremes: A Proposal for Modifying Court Member Selection in the Military,” in military courts-martial peremptories may be the best way to ensure defendants a fair trial. As he notes, the military context is one closer than the civilian criminal trial to the situation Blackstone contemplated, where prospective jurors are in a real sense similarly-situated as members of a particular military community. The effectiveness of the use of peremptories in that context, though, may be further evidence of why they create such problems in civilian courts.

—Lawrence Friedman

State Judicial Elections: Constitutional but Unhealthy

When we say that a product or process is “kosher,” we mean that it meets a minimum standard of quality or wholesomeness. Food sold as kosher must be certified as having been prepared in full accordance with Jewish dietary law. More figuratively, to say that something is kosher is akin to saying that it “passes the smell test” – it satisfies certain expectations about its suitability and appropriateness.

Deeming something kosher, however, only means that a baseline standard has been met; it doesn’t mean that it is actually good for you. Not all kosher food is healthy (witness the delicious but positively heart-stopping overstuffed pastrami sandwich), and not all “kosher” procedures in American democracy are advisable. It would be constitutional, for example, for Congress to eliminate all federal district courts, although virtually no one would think that it is a good idea.

Four times in the past decade, the Supreme Court has weighed in (directly or indirectly) on the constitutionality – the “kosherness” – of state judicial elections. Thirty-two states choose some or all of their judges in contested elections; in many of those states, candidates hit the campaign trail armed with party endorsements and special interest money. Despite growing concern that judges, as neutral arbiters, should not earn their positions through partisan politics or big-money political campaigns, the Court has repeatedly affirmed that such campaigns are, for the most part, entirely within constitutional bounds. In 2002, the Court held in Republican Party v. White that the First Amendment allowed judicial candidates to announce their positions on controversial issues while on the campaign trail. In 2008, the Court held unanimously that New York State’s byzantine, party boss-dominated system of selecting judicial candidates was purely a state issue, notwithstanding the sentiment that (in Justice Stevens’s words) the system was just plain “stupid.” This past Term, the Court opened the door to greater corporate and union election spending, including but not limited to judicial elections. Only in the 2009 Caperton v. Massey decision did the Court suggest any practical limitation on state judicial elections, holding that a West Virginia Supreme Court Justice had erred by refusing to recuse himself from a case directly involving his biggest campaign donor.

The declaration of the mere constitutionality of judicial election processes, however, has done nothing to improve the grim reality of the elections themselves. A terrific new report from the Justice at Stake Campaign, Brennan Center for Justice, and National Institute for Money in State Politics graphically documents the rampant growth in the past decade of campaign spending, television advertising, special interest involvement, and free-falling public confidence in the judiciary associated with judicial election campaigns. Among the findings:

* Campaign fundraising more than doubled over the past decade, from $83.3 million in 1990-99 to $206.9 million in 2000-09;
* “Super spenders” dominated judicial campaigns, with the top five (primarily special interest) spenders in elections spending over $470,000 each;
* Much of the money came from national business coalitions on one side and local plaintiffs’ bars on the other;
* Law firms have been able to secretly shuttle (in some instances) hundreds of thousands of dollars to their preferred candidates through PACs – candidates who, if victorious, would have a good chance of sitting on a case involving that firm;
* So-called “nonpartisan” races (in which the candidate’s party affiliation is not listed on the ballot) have become as costly and as nasty as their partisan counterparts.

Given these figures, it is unsurprising that about three-quarters of Americans – and about half of all state judges – believe that contributions to judicial campaigns affect the outcome of courtroom decisions. In an era where other public institutions are increasingly the subject of public skepticism and scorn, the courts can ill-afford a similar crisis of confidence.

Is there hope? Although several scholars quoted in the report suggest that judicial elections are here to stay, there are enough cracks in the façade to suggest a brighter future. More states are implementing public financing for judicial elections, and others are contemplating getting rid of elections altogether. Nevadans will have the opportunity to move to a “merit selection” system this November, effectively jettisoning elections in favor of a system in which judges are appointed from among qualified, screened candidates, evaluated during their term, and subjected to retention elections at term end. In doing so, Nevada would join a number of states with successful merit selection systems – states which manage to strike a sensible balance between judicial independence and accountability.

Jordan Singer

State Power and Same-Sex Marriage

Advocates of state power praised the recent decision by Judge Joseph Tauro, of the United States District Court for the District of Boston, in Commonwealth v. U.S. Department of Health and Human Services. Tauro found Section 3 of the Defense of Marriage Act unconstitutional for several reasons, including that the law violates the Tenth Amendment. That Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.”

Tauro reasoned (among other things) that states have the authority to regulate and define marriage, because marital status determinations traditionally have been viewed as falling within a state’s sovereign power. He noted that the federal government in its argument “offered little to disprove the persuasive precedential and historical arguments set forth by the Commonwealth to establish that marital status determinations are an attribute of state sovereignty.”

Of course, the fact that, as a historical matter, marital status determinations have been seen as within the power of the states does not mean that Congress has no authority at all in respect to such determinations. Indeed, as Jeff Jacoby recently noted in the Boston Globe, Tauro neglects at least one important historical example of federal control of marriage: the longstanding federal ban on polygamous marriage in the states of Utah, Arizona, Oklahoma and New Mexico—states whose admission into the union Congress conditioned upon their prohibition of such marriages.

More fundamentally, it is not clear from the Constitution itself that marital status determinations are off-limits to Congress. Though the U.S. Supreme Court has indicated there exist traditional areas in which state authority to regulate should be presumed, that is not the same as immunizing whole areas of policy from federal regulation.

Consider an example provided by Judge Tauro in the companion case to Commonwealth v. U.S. Department of Health and Human Services, Gill v. Office of Personnel Management. In Gill, he found that Section 3 of DOMA violates equal protection under the Fourteenth Amendment. Tauro reasoned that Congress has recognized all state definitions of marriage save this one, which undermines the federal government’s argument that the law operates even-handedly. But surely Congress could, under its spending power, create incentives for the states to deter all kinds of marital unions, including those that some states currently allow—like the one Tauro pointed to as permitted under DOMA, namely, the marriage of a thirteen year-old female and a fourteen year-old male, with their parents’ consent. Congress might even be able to regulate certain marital status determinations under the Commerce power if there were a sufficiently demonstrable interstate connection—say, prohibiting marriages in which one party was fraudulently induced to cross state lines to get married.

The decision in Commonwealth v. U.S. Department of Health and Human Services demonstrates the dilemma that advocates of states’ rights face. The Constitution enumerates limited categories of federal authority, but those categories may, depending upon the circumstances, encompass areas traditionally regulated by the states. In other words, while states have a great deal of power in our federalist system, some of that power may be exercised in the shadows cast by valid federal regulation. The best arguments for states’ rights advocates accordingly may lie in the realm of political action, rather than that of constitutional litigation.

Lawrence Friedman

The Modern Council of Revision

At the Constitutional Convention in Philadelphia in 1787, a few delegates proposed the adoption of a Council of Revision. The Council was to consist of a small group of high officials (mostly judges) whose job it would be to determine the constitutionality of any law under consideration by Congress. The purpose of the Council of Revision was to keep in check the dangerous excesses of popular majorities. In the end, cooler heads prevailed, and the Framers wisely rejected this proposal.

However, what we have today is an unstoppable U.S. Supreme Court fully determined to pass judgment on just about any significant Congressional enactment. Nearly every statute of consequence now has to meet the approval of a handful of these unelected, lifetime officials. The recently completed term of the Court is replete with examples of this -- most egregiously, the Citizens United case back in January which gutted the McCain/Feingold Campaign Finance Law, a law based upon extensive hearings and findings by Congressional committees. And a most important new piece of legislation, the Health Care Law, is being challenged by teams of conservative lawyers and state attorneys general who have every expectation that the Supremes will have lots to say about whether that Law is permissible or not.

Thus, for all practical purposes, we have allowed the old Council of Revision to become part of our system of government even though it was specifically rejected by the much venerated Founding Fathers. So much for the original intent of the framers of our Constitution.

George Dargo

Ironically, the Constitution is Lost in Supreme Court Confirmation Hearings

A recent Boston Globe article analyzed the impact of Senator Scott Brown’s vote on the candidacy of Solicitor General Elena Kagan to the Supreme Court of the United States. Quotes abound from each side of the political spectrum, stating that Brown’s vote will be a unique key in determining whether he is a “true” Republican or just a Massachusetts liberal in GOP clothing. Similarly, the media has bandied about its usual speculation whether certain GOP Senators will “follow party lines” and vote against the nomination or will “cross the isle to support Elena Kagan,” possibly to their own political detriment.

As far as I can tell, few Senators or media outlets mention the fact that these proceedings, as a matter of constitutional law, do not constitute an opportunity for Senators to get a pure “vote” on whether Solicitor General Kagan is the right person for the job. To the contrary, the Senate has a substantially subordinated role in this process, and equating a Senator’s vote with a pure statement of his or her political ideology inflates both the Senate’s constitutional authority in confirming justices and the importance of the vote in assessing a Senator’s conservative or liberal bona fides. Ironically, by aggrandizing the role of the Senate in this process, by overstating its “say” in this matter by implicitly equating the Senate with the White House, we blatantly lose sight of the Constitution. Let me explain….

Article II, Section 2 of the Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.” (Emphasis added). There are several crucial aspects of this language. First, this provision is located in the part of the Constitution detailing the powers of the President. Thus, the appointment of Supreme Court justices is a power committed to the President, subject to the advice and consent of the Senate. Second, the appointment occurs with the advice and consent of the Senate, not with its “approval” (a term used in Article I, Section 7 of the Constitution, giving the President power to sign or veto legislation if he “approve[s]” of it). Thus, the Senate’s power here is not the same type of full review accorded by the term “approval,” but instead is limited to mere “advice and consent.” Third, this provision is a notable exception to bicameralism in that only the Senate, and not the full Congress, gives advice and consent. Thus, the Senate’s power here is far more limited than the Congress’s general power to legislate. Finally, a bare majority vote fulfills the Senate’s advice and consent duty. This contrasts with the treaty-making power, also enumerated in Section 2 of Article II, which requires a two-thirds vote of the Senate. Thus, the Senate’s limited role in confirmation is even more limited than its role in ratifying treaties.

From all of this, we can glean that the Senate’s role in the confirmation process is extremely limited. Yet, if one listens to the media, one gets the impression that Scott Brown and his colleagues are just as much the “deciders” (to use a term popular with the last administration) here as the White House. That’s just not so, and by inflating the Senate’s role, we add fuel to the fire of the increasingly partisan and far less substantive tenor of the confirmation process. Rather than focusing on whether the candidate is qualified for the position, the opposing party in the Senate simply cross-examines the nominee in search of a “gotcha” moment. Rather than discussing qualifications, the opposing party now demands empty statements of fealty towards judicial deference to Congress and pro forma vows of abhorrence for judicial activism.

Rather than recognizing the important balance of constitutional authority inherent in this process, opportunistic politicians have transformed confirmation into mere political muckraking evidenced by the increasingly close votes for candidates who were eminently qualified for the High Court. (Since the 1988 confirmation of Justice Kennedy, not a single nominee has won unanimous confirmation. Scalia, J.: 98-0; Kennedy, J.: 97-0; Souter, J.: 90-9; Thomas, J.: 52-48; Ginsburg, J.: 96-3; Breyer, J.: 87-9; Roberts, CJ.: 78-22; Alito, J.: 58-42; Sotomayor, J.: 68-31).

The media and the Senate should stop treating the confirmation process as a measure of a Senator’s ideological philosophy. Instead, we should recognize that a vote for an opposing party’s nominee is the same type of constitutional deference currently demanded of nominees during their grilling in the Senate. As Senator Orrin G. Hatch (R-UT), has stated: there “are myriad reasons why political ideology has not been — and is not — an appropriate measure of judicial qualifications. Fundamentally, the Senate’s responsibility to provide advice and consent does not include an ideological litmus test.”

That’s good advice on how to give good advice and consent.

Louis Schulze

Miranda Takes Another Pounding

With Berghuis v. Thompkins, the U.S. Supreme Court decided its third Miranda case of the 2009-2010 term. This case follows a consistent trend by the Court to further limit the protections provided by Miranda warnings. It leaves us wondering what protections remain from the Court’s initial Miranda opinion, and raises the question of what the best way is to protect the interests the Court originally identified in Miranda.

In Berghuis, the defendant, Thompkins, was given his complete Miranda warnings and said virtually nothing for the next three hours. After this almost three hours of silence, where Thompkins neither expressly invoked or expressly waived his Miranda rights, the police asked him if he believed in God and if he prayed to God to forgive him for shooting the victim. To this question the defendant answered “yes” and this statement was admitted against him at trial.

The issue for the Court was whether by saying nothing at all, Thompkins had invoked his right to remain silent. Relying and expanding on its precedents in Davis v. United States and North Carolina v. Butler, the Court held that under these facts, Thompkins had not invoked his right to silence by saying nothing at all. What is most interesting and perhaps most telling about the Court’s current view of Miranda protections was the Court’s willingness to apply their holdings in Davis and Butler to these facts without any attempt to distinguish those cases.

In Davis, after the defendant had been advised of his Miranda rights and expressly waived those rights, during the course of the interrogation he made an equivocal request for counsel. The Court held that such an equivocal request for counsel made during the course of the interrogation is not an invocation of that right and the police are under no obligation to stop questioning or to clarify the accused’s intent. In Berghuis the Court saw no reason to craft a different rule with respect to the defendant’s right to silence.

It certainly makes sense and provides useful symmetry to apply the same standard to an invocation for the right to counsel and the right to remain silent. What the Court ignored in Berghuis, however, is what really distinguishes this case from Davis. In Davis, at the beginning of the interrogation, the defendant expressly waived both his right to silence and the right to counsel. Because of that express waiver, there was no real question that he understood his rights and that he intended to waive them. Berghuis presented the Court with a critical difference. At no time did Thompkins indicate that he understood his rights and there was never an express waiver. This difference certainly raises a question as to the knowing and voluntariness of the defendant’s waiver that did not exist in Davis. Other than Thompkins’ three-hour silence in the face of persistent questioning followed by a “yes,” there is nothing in the record to indicate that Thompkins either understood his rights or that he intended to waive them.

While this is not the first time the Court has held that a waiver can be implied from the facts and circumstances of the case (see North Carolina v. Butler), this is certainly the first case where the Court has held that a three-hour silence in the face of persistent questioning is evidence of an implied voluntary waiver.

Moreover, the Court’s opinion in Berghuis undermines one of the core rationales for Miranda warnings. One of the primary reasons the Miranda Court required warnings in a custodial interrogation setting was to empower the suspect with the knowledge that he does not have to submit to the interrogation and he can stop the interrogation at any point. If we now say that the suspect’s silence in the face of police questioning will earn him hours of persistent questioning until he says something, it is difficult to see how Miranda warnings really level the playing field.

Nevertheless, Berghuis has the value of consistency in that it is the latest reflection of the Court’s disdain for Miranda. In light of this hostility, maybe it is time for advocates of Miranda type protections to focus their efforts on statutory reforms that codify Miranda’s most important protections. These advocates would do well to look at how the military treats these issues. Interestingly, Article 31 of the Uniform Code of Military Justice codified Miranda type warnings years before Miranda was decided. Because these requirements are not court-created rules but requirements imposed by Congress, they are not so easily avoided or narrowed by the courts. Certainly getting legislators and policymakers to support statutes, rules, and procedures that at first blush might be seen to benefit criminal defendants is no easy task, but it seems a better option than being continually pounded by the Court.

Victor Hansen

Expectations of Privacy, Revisited

In City of Ontario v. Quon, the U.S. Supreme Court concluded that, in the particular circumstances of the case, a government employer had a right “to read text messages sent and received on a pager the employer owned and issued to an employee.” Deciding the case in carefully narrow fashion, Justice Anthony Kennedy’s opinion for the Court assumed that the police officer, Jeff Quon, had a reasonable expectation of privacy in his text messages and concluded that the search of those messages was reasonable, because it was conducted for a legitimate, work-related purpose.

Before reaching this conclusion, Kennedy spends some time toying with the question whether Quon had a reasonable expectation of privacy sufficient to trigger Fourth Amendment protections. The Court assumes, for the purposes of this case, that he did, rather than resolving the issue because, as Kennedy puts it, “[t]he Court must proceed with care when considering the whole concept of privacy expectations in communications owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.”

When it decided Katz v. United States in 1967, the Court had no such reluctance. In that case, the Court determined that individuals have a reasonable expectation of privacy in a telephone booth. Kennedy suggests that “[i]t is not so clear that courts at present are on so sure a ground,” thus suggesting that, unlike text messaging, the technological issues in Katz could be viewed as within the realm of judicial competence to evaluate. Kennedy goes on to observe that what society regards as private is changing, and that “employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.”

The problem here is that technology has obscured the central issue regarding the privacy the framers designed the Fourth Amendment to protect. One does not have to have an engineering degree to see why Katz had a reasonable expectation of privacy in a phone booth: because the whole point of entering a phone booth and shutting the door was to create a private space in which to have a conversation. Whether Katz’s side of that conversation was actually private was essentially irrelevant; obviously, someone could have read his lips through the glass or perhaps been standing close enough to hear his part of the conversation. Those possibilities did not matter because the conception of reasonable privacy embraced in Katz was normative—the Court assumed some retreat from the world should be sanctioned, even if it could not be perfected; otherwise, we could reach a point at which technology makes nearly every expectation of privacy unreasonable.

For its part, the Quon Court is suggesting that privacy should be judged by such measures as societal standards and employer guidelines. This means that, even if no one save Quon and the person with whom he was texting could see the content of their communications, still there might be no privacy if an employer declared that employees, on employer-owned equipment, had no expectation of privacy. This understanding of privacy, unlike that adopted in Katz, is descriptive: it is defined by what content a person can actually keep from prying eyes, rather than by what a court should regard as necessarily private. Consider that, as in the cases involving information revealed to a bank or a doctor, a court could conclude that, simply because the provider of the text messaging service has access to the content of the user’s texts, there can be no reasonable expectation of privacy.

Because perfect privacy is not possible, this kind of thinking will ultimately forestall arguments about expectations of privacy in respect to new modes of communication. So let’s read Quon in a more positive light. Perhaps the Court’s fussing about the various possibilities for a reasonable expectation of privacy in text messaging and like communications services signals that arguments for the normative conception of privacy articulated in Katz will have some weight in litigation about the privacy of communicative modes that would not exist without third-party intermediaries.

Lawrence Friedman

Inherent Executive Authority and National Security

Professor John Yoo, one of the architects of the Bush administration’s terrorism policies, recently wrote in the New York Times that, “[i]n foreign affairs …the chief executive should enjoy flexible powers to grapple with challenges abroad for which Congress is ill suited.” He made this statement in the context of a critical evaluation of Elena Kagan’s position on executive power, suggesting that, on Kagan’s view, Presidents “do not have the power to detain or interrogate enemy terrorists without criminal trial, monitor their communications or fire missiles at their leaders.”

Obviously, the President has the power to undertake each of these actions—but not because, as Yoo assumes, the President has the inherent constitutional authority to do so.

Let’s take a step back to January 2009, the first month of the Obama administration. Early on, the administration sought to distinguish itself from its predecessor in respect to the war on terror by publicly disclaiming reliance upon notions of inherent authority to validate executive decision-making in respect to the war on terror. Instead, the Obama administration has relied upon Congress’s September 18, 2001, authorization to use military force against those responsible for the September 11 attacks. While the Bush administration relied upon that Congressional authorization, it also claimed inherent authority under the Constitution to launch the war in Afghanistan, detain enemy suspected terrorists, and even establish a domestic electronic surveillance program.

Of course, the Obama administration’s position does not mean it has disclaimed any future reliance upon the President’s inherent constitutional authority. It means only that, for the moment, the administration believes that it does not need to rely upon such constitutional authority for any of the anti-terrorism actions it is pursuing (many of which are identical to the actions of the Bush administration).

The decision to rely exclusively upon Congressional authority was a wise one. First, the validity of Presidential action is least questionable when authorized by Congress; as Justice Robert Jackson wrote in Youngstown Sheet & Tube v. Sawyer, “[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”

Second, it is far from clear that the Constitution actually supplies the President the expansive inherent authority claimed by the Bush administration, even in matters of national security. As David Barron and Martin Lederman concluded in their magisterial study of Presidential authority, published in the Harvard Law Review, the President as commander-in-chief wields not a vast executive power over national security and foreign affairs, but rather a “prerogative of superintendence”—that is, a presumption of exclusive control over “the vast reservoirs of military discretion that exist in every armed conflict.”

This is nothing more—or less—than the authority of the President to make tactical and strategic decisions in the midst of combat operations or their equivalent. And the President cannot exercise this power absent a precipitating action—like a Congressional declaration of war, or in modern times, the kind of authorization for armed conflict issued on September 18, 2001. In other words, other than the power of superintendence, what power the President enjoys in the realm of national security and foreign affairs does not become his unless and until it is triggered by Congress. This realm simply is not one in which the President enjoys plenary authority, except in extraordinary circumstances. This understanding makes sense in light of other textual limitations on executive authority—indeed, given that the President cannot appoint ambassadors without the consent of the Senate, it would be odd if he could unilaterally control the nation’s security efforts without Congressional involvement or approval.

Further, this understanding of the relationship between Congress and the President in respect to national security and foreign affairs is consonant with the scheme of separation of powers established by the Constitution. In no area of law- or policy-making does the Constitution favor one branch exercising unchecked authority—though it does suggest a preference for representative democratic decision-making. And this makes sense if the framers were concerned that the federal government be kept accountable for its actions.

Nor does this understanding of the relationship between Congress and the President undermine the ability of the federal government to keep the nation safe, to act appropriately and expeditiously in respect to the many serious threats we face. It simply means that, to the extent the President has any inherent authority in matters of national security and foreign affairs, that authority has limits. Absent an attack on the United States or similar exigency, the President must turn to Congress and convince its members that the circumstances warrant a grant of authority.

In its September 18 authorization, Congress gave the President substantial authority to conduct the war on terror. If the President needs still more expansive authority to fight this war, he can ask for it. The fact that he has to ask for this authority serves to prevent the aggregation of untoward power in one branch of government—power that inevitably will be exercised within our borders as well as without, given the nature of the terrorist threat. This check on tyranny has a value that transcends the war on terror, and its lasting importance should cause us to hesitate before uncritically accepting arguments about inherent executive authority, like the one proposed by Professor Yoo.

Louisiana: Why Does it Matter?

Why should we who visit New Orleans from time to time – to listen to jazz in Preservation Hall, to watch people carry on during Mardi Gras, to eat Cajun food, drink coffee in Café Du Monde in the French Quarter, to enjoy the beauty of Audubon Park, or to ride the ancient trolley cars on St. Charles Avenue – why should we care that British Petroleum’s devastating oil spill is spoiling the delicate coastline of Louisiana and the estuary of the Mississippi River? Why does Louisiana matter at all?

The Spanish called it Baja Luisiana (Lower Louisiana), but the Americans changed it to the “Orleans Territory” in a vain effort to erase the memory of three quarters of a century of European rule. That effort failed when the French inhabitants insisted on the name Louisiana. So it was called when the state entered the Union in 1812. Naming rights aside, Louisiana was a very strange and unknown region two hundred years ago when, through clever diplomacy and lucky chance, the whole of the empire of what the French called La Louisiane was purchased from Napoleon in 1803.

Travelers coming to New Orleans usually came by sea since there were no roads to speak of connecting America’s newest and greatest possession to the rest of the country. First impressions may well have been of overwhelming desolation at the point of entry at the mouth of the Mississippi over one hundred miles southeast of the Crescent City. As one voyager reported, “we entered the river in the afternoon. As long as daylight would permit us a view nothing appeared but a dull uniform marsh covered with reeds, no cheering prospect to refresh the eye. All around is one dead level.” Another observed “a low and swampy shore, in many parts drowned by the river, uninhabited and uninhabitable, where only wild and misshapen vegetation subsists.”

We now know how precious the barren landscape of the deep delta truly was. For these were the cane fields, marshes, cypress swamps, inlets, bayous, and wetlands that protected what we now call “the Big Easy” from the destructive forces of nature. It was fire – probably caused by human negligence – that nearly destroyed the entire city in 1788 – not hurricanes or some other natural calamity. At the time, the Spanish who governed Louisiana rebuilt the town using the architecture characteristic of Spanish and Caribbean forms that we now recognize and treasure. They reconstructed everything using iron and brick rather than wood wherever possible according to fire and building codes that made New Orleans the very first city to have any such regulations.

The physical features that surrounded New Orleans, then the most important city on the Mississippi River, even protected it from a British invasion at the very end of the War of 1812. England sent an armada to invest the city and thereby seize control of all of Louisiana, but the crack troops who tried it – Wellington’s veterans from the Peninsular Campaign in Europe – were unable to negotiate the cypress swamps, marshes, and bayous surrounding New Orleans. They were defeated by a ragtag assemblage of local militia, black slaves, free people of color, pirates, and a motley assortment of fighters from as far away as Kentucky who finally defeated a British army many times its size on January 8, 1815 in the Battle of New Orleans, one of the most decisive and consequential military engagements ever fought on the North American continent.

We think of New Orleans as a Southern city and of Louisiana as one of the states of the Deep South. After all, it was part of the Confederate States of America, and New Orleans was the very first major city of the Confederacy that fell to the Union when Fleet Officer David Farragut led a naval force up the Mississippi River in the spring of 1862 to capture New Orleans. The city remained in Union hands for the duration of the Civil War. And, as a slaveholding state with a very large African American slave population, Louisiana had been an integral part all of the oppressions that we associate with black enslavement and with the so-called emancipation that followed. During the earliest years, black slaves were governed by something called the Code Noir which was one of the worst slave codes in the American South. And then the regime of Jim Crowism which followed the Civil War and Reconstruction – the enforced separation of the races which did not begin to end for nearly another hundred years – was given the official imprimatur of legality by the Supreme Court of the United States in the case of Plessy v. Ferguson in 1896, a case that emanated from Louisiana.

So Louisiana is very much a part of the story of American racism. That we know. But it is also true that New Orleans had the largest population of “Free People of Color” of any antebellum southern city. Even in the days of slavery, free Africans and former slaves living in New Orleans had many of the same rights and privileges as whites – they could and did own property, establish businesses, have a normal family life, and live freely – something which was unheard of in the rest of the American South. In that respect, the Louisiana experience would anticipate America today as the country works through stubborn issues of racial inequality and the continuing struggle for racial equalization.

Even with respect to the unique Louisiana legal system, America has had much to learn. In the field of family law, for example, the property rights of married women in early Louisiana were way ahead of the law in the American common law states while the community property systems well-known in the former colonies of France and Spain would be highly influential in many of those states in years to come. In addition, in an increasingly globalized world where law is often borrowed or duplicated outright, Louisiana enjoys distinguished membership in a family of nations that have “mixed legal systems.” Despite the protestations of tea partyers from below and some federal jurists from above, America must necessarily learn to copy from the legal experience of other equally developed legal regimes just as Louisiana has been doing from the very beginning.

Why, then, does Louisiana matter? It matters because, despite its uniqueness, its difference, its special history, and its Creole/Caribbean culture, Louisiana is a microcosm of America. The Louisiana experience mirrors the American experience. Nowhere else in the country was there a population as mixed and diverse as that of New Orleans right up until our own time. Even New York, with its large influx of immigrants from Southern and Eastern Europe at the beginning of the 20th century, did not equal New Orleans in the complexity of its population which consisted, in 1800, of French speakers from Santo Domingo (refugees from the Haitian Revolution), natives of France, native-born Louisianians, as well as Germans, Spanish, Americans, Irish, African slaves, Free People of Color, and others. Consequently, Louisiana became a hybrid culture long before America would become a hybrid product of the many different peoples that would settle this country particularly in the period before restrictive federal immigration laws were enacted early in the 20th century.

So as we watch with helpless horror as oil fouls the Gulf of Mexico – a direct result of corporate malfeasance and regulatory failure – with irreparable harm already inflicted upon endangered wildlife and fragile ecosystems, we should all care very deeply about what happens to Louisiana. Because Louisiana is us. Louisiana’s history is our history, its future our future, and we are all in this together.

George Dargo

Miranda's Real Legacy

My colleague Professor Friedman’s posting about Miranda rights and the enduring values represented by Miranda raises some very interesting issues, particularly in light of the Obama administration's recent efforts to create a legislative exception to Miranda warnings in terrorist cases. In seeking to create this terrorist exception, the administration seems to be exploiting the schizophrenic way the Supreme Court has treated Miranda warnings since the Court created them in 1966.

If the administration is successful in its attempt to get Congress to create a terrorist exception, it will not be the first exception to the Miranda rule. Shortly after Miranda was announced, in fact, the Court recognized an emergency exception to the warning requirements in Dunaway v. New York. That exception is still very much in use today. The Attorney General recently stated that the FBI interrogated Umar Farouk Abdulmutallaban, the alleged “underwear bomber,” without giving him Miranda warnings, citing to the emergency exception.

In addition, the Court has also significantly limited the application of the exclusionary rule when police conduct is a mere violation of Miranda warnings. In United States v. Patante, a majority of the Court held that the remedy for a Miranda violation is limited to the suppression of the statement so obtained. The suppression does not apply, however, to the derivative evidence that came from that unwarned statement, particularly when that derivative evidence is highly probative.

Finally, in Dickerson v. United States, while the Court did uphold Miranda’s validity and rejected Congress’ attempt to eliminate Miranda by statute, the basis of the Court’s rationale for upholding Miranda was anything but clear. In his dissent in Dickerson, Justice Scalia launched a powerful attack on the Court’s schizophrenic treatment of Miranda, noting that at various times the Court has referred to the warnings a “prophylactic rule,” a “constitutional decision,” “constitutionally based,” and a rule with “constitutional underpinnings,” but has never held that a failure to give Miranda warnings violates the Constitution. Indeed, if a failure to give Miranda warnings was a constitutional violation, the validity of the emergency exception which the Court recognized in Dunaway would be highly suspect.

So it is this against this background that the Obama administration is seeking to create a terrorist exception to Miranda. If the administration is successful, and if the courts uphold this terrorist exception, this will add yet one more chapter to Miranda’s storied history–a history that reflects a complex, confusing and inherently inconsistent body of caselaw. Scott Turow suggests that the legacy of Miranda is an expression of equality before the law. But in light of its history, the legacy of Miranda may be that courts are particularly ill equipped to legislate from the bench.

Modifying Miranda in Terrorism Cases

When government action threatens our ability to control information about ourselves, the first place we seek refuge is the Fourth Amendment, which protects “the right of the people to be secure in their persons, houses, papers, and effects.” But the Fourth Amendment is not the only constitutional provision that concerns privacy. As interpreted by the United States Supreme Court, most famously in Miranda v. Arizona, the Fifth Amendment, too, protects our ability to keep information to ourselves in the particular instance when police officers are asking us questions we do not wish to answer.

Miranda has become part of the culture. Everyone who has ever seen an episode of some iteration of Law & Order likely knows that Miranda requires police officers to advise a person arrested that he or she has the right to remain silent. And this judge-made rule is so much a part of the fabric of our laws that when, in Dickerson v. United States, it faced serious challenge on constitutional grounds, the Court overwhelmingly affirmed Miranda’s validity.

Following the decision in Dickerson, lawyer and novelist Scott Turow suggested that the actual utility of Miranda is quite limited: at this time, he wrote, “Miranda has little practical impact on the interaction between suspects and cops.” This is because “courts and cops have accommodated themselves to the rule.”

For Turow, Miranda is about more than utility: it is a “vivid emblem of central ideas about the law,” standing for the principle that “[c]atching bad guys is important, but it is not the only thing this society values.”

Notwithstanding Dickerson, Miranda’s constitutional provenance is suspect. There are other ways to protect a person’s right to remain silent. For instance, the government could simply be put to its proof to demonstrate that any given confession was, in fact, knowingly, intelligently, and voluntarily made. Instead, in the mine run of cases, the government need only show that the police gave the warning and that the suspect heard it. This is likely better than nothing, but, as Turow has explained, what enduring value Miranda has lies more in what it means, rather than what it does.

And even that symbolic value may once again be put to the test, for the Obama administration recently announced that it would seek a law allowing investigators to interrogate terrorism suspects without administering Miranda warnings. The proposal is in tension with the fact that the Constitution does not distinguish between ordinary criminals and terrorists—or even ordinary criminals and innocent bystanders. This is the great leveling force of the Constitution’s privacy protections, and Miranda in particular: as Turow put it, the decision “is an expression of equality before the law.”

So when we begin to discuss exceptions to Miranda’s mandate in cases alleging terrorism, what we are really saying is all persons may not, in fact, be equal before the law. To be sure, modifying Miranda for terrorism cases is expeditious. The real question is whether such modification is consonant with the consistency and fairness we have long associated with the rule of law.

Lawrence Friedman

Shopping for Privacy

My colleague, Professor Vic Hansen, has written in this space about the problem of protecting privacy in our increasingly interconnected digital age. He noted the ease with which third parties can gather information about us from our online activities, including the use of social networking sites like Facebook, and questioned how this phenomenon would affect judicial determinations of reasonable expectations of privacy under the Fourth Amendment.

If privacy is understood as the control we have over information about ourselves, this is no idle inquiry. Even for those of us who eschew social networking sites and online shopping, expectations of privacy are being recalculated daily. Natasha Singer, writing in the New York Times, recently reported that retail stores now employ camera arrays designed to follow your every movement while in the store, and mobile marketers can use information about you and your cell phone’s GPS capability to send you ads specifically geared toward what appear to be your expressed interest in all manner of goods and products. For retailers, this kind of technology improves the ability to determine what to sell, and to whom.

There is a price, of course: diminished expectations of privacy. And it is a price we all pay—not just those of us who have cell phones and go the mall.

Singer suggests we have become a “post-privacy society, where we have lost track of how many entities are tracking us.” In her article, she identifies the larger issue as the industrialization of the collection of information. Information, as the saying goes, is power, and information about consumer preferences and habits may be critical to improving a retailer’s quarterly earnings report.

The Federal Trade Commission is working on new privacy guidelines, but the forces pushing for more and better information will be difficult to deter. Part of the reason is the collective action problem: we generally like our own privacy, but we are less interested in the privacy of others. And if, on the other hand, we generally don’t care about our privacy, we’re likely to sell it cheaply.

As Professor Hansen observes, courts tend to rely upon a descriptive understanding of personal privacy in evaluating claims against the government under the Fourth Amendment. The same is true, of course, in the case of a claim against a party under consumer protection laws. Either way, courts attempt to gauge whether a protectable privacy interest exists, rather than whether such an interest ought to be recognized, in a given instance. When, without serious objection, cameras follow us while we shop, recording our every move for later evaluation, and retailers know whether we are standing in front of the shirts or the ties, it becomes increasingly difficult to argue that any consequential loss of privacy ought to count as harm worthy of legal notice.

Lawrence Friedman

Principal Places of Business

In Hertz Corporation v. Friend, issued in February, the United States Supreme Court resolved a longstanding question of federal subject matter jurisdiction: for diversity purposes, where is a corporation’s principal place of business? 28 U.S.C. § 1332(c) provides that “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” Over the years since the rule was codified, the Courts of Appeals developed differing views as to where, exactly, to find a corporation’s principal place of business—whether in the place where the business conducted most of its activity, or the place where the corporation directed and controlled its various activities. A unanimous opinion by Justice Stephen Breyer settled on the latter.

There were several reasons for this. The Hertz Corporation Court concluded, first, that the statute’s text supported the so-called “nerve center” approach, because a corporation’s nerve center is usually its main headquarters and a single place. Second, the Court discussed administrative simplicity: “Complex jurisdiction tests,” Breyer wrote, “complicate a case, eating up time and money as the parties litigate, not the merits of their claims, but which court is the right court to decide those claims.” In addition to simplifying jurisdictional inquiries, the nerve center test approach will promote predictability. Finally, the statute’s legislative history (“for those who accept it,” Breyer noted), “offers a simplicity-related interpretive benchmark” by suggesting “that the words ‘principal place of business’ should be interpreted to be no more complex than the [initially proposed] ‘half of gross income’ test. A ‘nerve center’ test offers such a possibility. A general business test does not.”

The decision in Hertz Corporation clarifies an area of law in which the different tests employed by the Courts of Appeals had engendered no small amount of confusion in trying to tease out when, for jurisdictional purposes, to favor general business activities over command and direction of those activities. Justice Breyer’s reliance upon text and legislative history is skillful, but it is really the second of the Court’s stated reasons for adopting the nerve center approach that stands out—that the nerve center test will reduce litigation over jurisdictional issues, simplify the trial court’s work, and create more predictability in the law.

Simplicity is a virtue, but simplicity does not necessarily “diminish the likelihood that results and settlements will reflect a claim’s legal and factual merits.” There are many ways to litigate a case and many ways to credit an outcome as favorable, and not all of those ways necessarily relate to the merits of a claim. An effort to reduce gamesmanship, to focus judicial and lawyerly attention on the merits, is all to the good, of course; but here experience will likely trump hope. This is so because, while the courts are rightly concerned with efficiency, litigators may not be; inefficiency—and the financial and temporal costs of delay—can be used to push a case toward settlement.

In a sense, inefficiency may be a natural by-product of an attorney’s zealous advocacy. Lawyers trained in the methodology of the common law eventually will wear away at the bright line rule announced in Hertz Corporation, as water does stone. It will start with litigation over what the Court sees as outlier cases—those in which “corporations … divide their command and coordinating functions among officers who work at several different locations, perhaps communicating over the Internet.” Even if the Court’s new bright-line rule does not encourage corporations to structure themselves in precisely this way, it is likely that, over time, we will see more and more corporations develop nerve centers that are networked throughout different states, increasing the potential for litigation over the very question Hertz Corporation endeavored to resolve: where should the courts locate such a corporation’s principal place of business?

Still, the decision in Hertz Corporation recognizes that, in matters of procedure, there are benefits to be gained by bright lines. And the decision acknowledges that some lines are indeed brighter than others; while the nerve center approach may not “automatically generate a result,” it “is relatively easier to apply.” That is something—at least for so long as it remains true to how the majority of corporations operate in our increasingly interconnected digital world.

Lawrence Friedman

Public School Teachers and Due Process

The news coming out of Rhode Island, as discussed by my colleague, Monica Teixeira de Sousa, and more recently in The Boston Globe, regarding the mass firing of public school teachers is deeply disturbing.

The Due Process Clause of the Fourteenth Amendment of the United States Constitution is clearly in play here. Neither state law nor administrative order can take away property rights that regular public school teachers have in their jobs. Each of these teachers--whether in Boston or in Central Falls, Rhode Island, is entitled to an individualized, case by case hearing with the opportunity to confront the allegations against them plus the chance to refute them.

"The fundamental requisite of due process of law is the opportunity to be heard." So said the Supreme Court back in 1914, at a time when that Court was even more conservative than the present one.

This draconian policy of mass firing of public employees is coming down from the very top--from the Obama administration itself. One would have thought that a former teacher of Constitutional Law in one of the nation's most distinguished law schools would remember what every first year law student has learned--that the Constitution of the United States protects the due process rights of every person. Surely the public school teachers in Boston and Central Falls are entitled to nothing less.

George Dargo

Our Perception of Corruption

Why are we outraged to hear about a bully picking on an innocent child yet learning about multinational corporations bribing corrupt government officials elicits only a yawning “business as usual” reaction? An article by a trio of South American scholars published in the International Journal of Psychology Research offers some insight.

The authors, Eduardo Salcedo-Albarán, Isaac de León-Beltrán, and Muricio Rubio, work from neurological research that examines activity in the brain while it is performing certain tasks. One of the findings of neurological researchers is that many of our behaviors— many more than previously thought—spring from our instincts rather than from what we think of as our reasoning processes. These findings are changing the foundational constructs of some of our social sciences; for example, the “rational person” assumption of economics is coming under increasing scrutiny. But the authors here are interested in our perception of corruption. What they conclude is that our inability to perceive corruption as “reprehensible behavior” stems from the lack of certain factual conditions necessary to trigger such an emotional response. The authors point out that campaigns aimed at preventing corruption often try to teach people how to connect corruption with its deleterious effect on society as a whole. The problem with this strategy, they say, is that it requires people to make “complex causal links” for which they may not have the training. Only when corruption can be shown to harm goods and services close to them do people tend to make the connection. Looking into research involving neurological mechanisms referred to as “mirror neurons,” along with psychological mechanisms called “Theory of the Minds,” they explain the basis for this disconnect. Mirror neurons allow us to experience a sort of vicarious distress when we become aware of the pain or discomfort of others. So violent crimes that hurt other human beings trigger negative feelings, such as regret or aversion. Likewise, Theory of the Minds allows us to infer the mental states of others; we assume that something that would hurt us would hurt another person.

But in order for these processes to work, there must be another person who is being harmed by the act in question. This is where the difficulty of causal links comes in. Learning about an act that harms society as a whole does not trigger in the observer an acute emotional response because, without engaging in extensive analysis, no discrete victim is identified. As the authors put it, “acts of public corruption are similar [to] hitting a tree” rather than a person. And, unfortunately for those pointing out the connection between the act of corruption and the suffering of individuals, careful argument is no match for the emotional impact triggered through these physiological processes. Marketers have understood this for years—this is why marketing strategies are designed to appeal to our emotions rather than to convince us by argument or logic that we need things they are selling. The authors conclude that in the case of the crime of corruption, it is important to show the victims and the causal links between the crime and those victims.

Elizabeth Spahn is a law professor at New England Law | Boston who studies international corruption. Spahn recently spoke about her area of expertise at a symposium entitled “Combating Global Corruption” at Georgetown Law School. In her talk, based on an article that will appear in the Georgetown Journal of International Law, she focused on the human consequences of bribery. Because bribery is used to circumvent regulations and bypass normal vetting processes for the production of goods and services, Professor Spahn points out that it has a prominent role in a number of international incidents implicating human suffering. It provides an entree into markets for transnational criminal organizations and sets the stage for organized crimes such as human trafficking and trade in wildlife and animal parts. Breaking down regulatory barriers leads to low quality-control products such as contaminated toothpaste, fake baby milk formula, toxic toys and poisoned pet food. Because not all regulations circumvented by bribes are merely bureaucratic; some are related to quality control. One study concluded that corruption reduces pollution control. It also had a role in the Yanacocha Mine mercury spill. Spahn’s non-exhaustive list goes on.

Although it may not be obvious without some observation and analysis, corruption has devastating human costs. The fight against corruption is made more difficult by limitations in our perception of the crime brought on by our physiological make-up. But if marketers can employ strategies to appeal to this aspect of our humanness to sell us products, surely those battling corruption can learn to make the same connections to invoke the outrage to fit the crime. In her presentation at Georgetown, Professor Spahn drew specific links between corruption and individual suffering. In the battle against international corruption, Elizabeth Spahn gets it. And she’s working to ensure that the rest of the world will soon get it too.