tag:blogger.com,1999:blog-58796312659389061862024-01-26T05:21:07.948-05:00New England Law ProfessorsWebmasterhttp://www.blogger.com/profile/05506162355597607649noreply@blogger.comBlogger84125tag:blogger.com,1999:blog-5879631265938906186.post-8814352626785001872016-05-06T15:28:00.002-04:002016-05-06T15:29:39.996-04:00Luis v. United States and a Right to Counsel for the RichThe <a href="https://www.law.cornell.edu/constitution/sixth_amendment" target="_blank">Sixth Amendment</a>,
which the Supreme Court has for over half a century interpreted to
afford indigent criminal defendants a right to a lawyer at government
expense, now also provides wealthy defendants something: protection from
the government’s freezing their untainted assets (as opposed to those
traceable to, or proceeds of, crime) to prevent retaining counsel of
their choice. As principled—and protective of the Sixth Amendment—as
this distinction may be, it reinforces something much more pernicious:
there is now effectively a right of the rich to be free from
impoverishment by the government, to protect their Sixth Amendment right
to <i>retain</i> counsel of their choosing, while the identical Amendment does not provide an indigent defendant <i>access</i> to an actual lawyer of <i>anyone’s</i> choice.<br />
<br />
<a href="http://www.supremecourt.gov/opinions/15pdf/14-419_nmip.pdf" target="_blank"><i>Luis v. United States</i></a>,
was quite simple: federal law permits pre-trial freezing of certain
criminal defendants’ assets that are proceeds of the crime, traceable to
the crime, or of equal value to either of the first categories. Ms.
Luis allegedly obtained $45 million through health care-related fraud,
but when indicted had only $2 million, which the government agreed was
neither proceeds of nor traceable to the fraud. Freezing these funds, to
satisfy what the government contended would be restitution upon
conviction, would preclude her hiring counsel of her choice. If the
Sixth Amendment truly conferred a right to hire counsel of one’s choice,
then did it also prevent the government from vitiating this right by
freezing all one’s resources with which to pay counsel? Yes, the Court
found, although not for any reason that commanded a majority.<br />
<br />
Given the essential fungibility of money, the distinction between
freezing financial assets that are proceeds of criminal activity, or
even arguably such, and those equivalent in amount but conceded to be
untainted may be a bit hazy. But it is this distinction between the
characterizations “tainted” and “untainted” assets (or what’s “mine,”
i.e., the defendant’s, versus what’s “yours,” i.e., the Government’s, in
Justice Breyer’s language for the plurality), as opposed to simply
“forfeitable” assets (Justice Kennedy’s terminology for the dissenters)
that divides the four member plurality from the three dissenters.
Justice Thomas’ concurrence in the judgment, based on a plain meaning
interpretation of the term “right to the assistance of counsel,” that
must have meant to the Framers a right not to have the government seize
all one’s resources because the only counsel available “back in the day”
was one you hired, and 17th and 18th century understandings of
“forfeiture” were exclusively post-conviction, is a paean to the late
Justice Scalia (cited five times by name). Whatever the merits of the
tainted/untainted as opposed to forfeitable characterizations, after <i>Luis v. United States</i>,
it’s crystal clear the government may no longer seek to freeze assets
that can’t be traced to criminal activity, even if they would be all
that’s left to ensure adequate resources are available for forfeiture
after conviction, if doing so would preclude a rich defendant from
hiring counsel of her choice.<br />
<br />
Of course, this choice is not limited to wealthy defendants, but
one—like the choice to sleep under the bridges of Paris, beg in the
streets, or steal bread—<a href="http://www.online-literature.com/anatole-france/red-lily/8/" target="_blank">that the law in its majesty equally forbids the rich and the poor</a>,
though it stands in stark contrast to the right of an indigent criminal
defendant to actually have a genuine, living, breathing lawyer of <i>anyone’s</i> choice. As the Court held in <a href="https://scholar.google.com/scholar_case?case=17120864675203183732&q=554+U.S.+191&hl=en&as_sdt=40000006" target="_blank"><i>Rothgery v. Gillespie County</i>, 554 U.S. 191, 213 (2008)</a>, even the attachment of the right to counsel by appearance before a judicial officer in a criminal proceeding does not <i>then</i>
give an indigent defendant a right to a lawyer. Whether even a delay of
six months to obtain representation by a lawyer would harm this right
is a nice, but unreached, question. (The Court’s studied avoidance of
this question ensures indigent defendants often receive counsel so late
that their rights are not effectively protected, as <a href="http://sixthamendment.org/6ac/6ACPJI_earlyappointmentofcounsel_032014.pdf" target="_blank">detailed in 2014</a> by the <a href="http://sixthamendment.org/" target="_blank">Sixth Amendment Center</a>.)<br />
<br />
Both the plurality and the principal dissent in <i>Luis</i> are
only too quick to point out the parade of horribles facing such affluent
defendants: they would have to “fall back on overworked and underpaid
public defenders.” (Breyer, J., Slip. Op. at 15.) Of course, “[g]iven
the large volume of defendants in the criminal justice system who rely
on public representation, it would be troubling to suggest that a
defendant who might be represented by a public defender will receive
inadequate representation.” (Kennedy, J., Slip Op. 14.) Yet this is
exactly what the <a href="http://www.brennancenter.org/sites/default/files/publications/Gideon_Report_040913.pdf" target="_blank">Brennan Center report</a>,
that Justice Kennedy himself cites, states: Inadequate funding means
public defenders “are simply unable to provide clients with their
constitutional right to counsel, effectively making <i>Gideon</i> an unfunded mandate at a time when public defenders are needed most.”<br />
<br />
A wealthy defendant cannot constitutionally be converted into an
indigent one, with the attendant disabling effects for her defense, yet
an indigent defendant not only has no right to access the sort of
preventive, proactive litigation that retained counsel can provide, but
cannot even rely on having the right to counsel made real—with an actual
lawyer—until what may be sometime after having appeared in court. Just
one more way the rich really are different, even when they are charged
with a crime.<br />
<br />
<a href="https://www.nesl.edu/faculty/full_time.cfm?facid=35">Professor David Siegel </a>Webmasterhttp://www.blogger.com/profile/05506162355597607649noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-44177635300254257532016-03-18T10:51:00.003-04:002016-03-18T10:59:44.260-04:00Drumpf ™?<div class="entry-title">
TV host John Oliver made waves recently when he launched a campaign on his <a href="https://www.youtube.com/watch?v=DnpO_RTSNmQ" target="_blank">HBO show <i>Last Week Tonight</i> to “Make Donald Drumpf Again,”</a>
a reference to the Republican presidential frontrunner’s
less-than-sonorous historic family name. As part of that 21-minute skit,
which has been watched an astounding 21 million times on YouTube in
just a few days, the host claimed to have filed for trademark protection
for the term DRUMPF. Did he? Can he?
</div>
<br />
Yes, and maybe. The application for the mark, now available on the <a href="http://tsdr.uspto.gov/#caseNumber=86921166&caseSearchType=US_APPLICATION&caseType=DEFAULT&searchType=statusSearch" target="_blank">USPTO website as Serial No. 86921166</a>,
shows that he did file an intent-to-use federal service mark
application for DRUMPF in connection with, “Provision of a website
featuring multimedia content.” Or, strictly speaking, a New York-based
Delaware company called Drumpf Industries, LLC (dutifully formed a few
weeks ago) filed it. So, yes, Oliver is on file. Were he serious about
registering, however, the application faces a few challenges, any one of
which might be raised by a trademark examiner (or even Mr. Trump
himself, should it ultimately be approved by the Trademark Office).<br />
<br />
First, <a href="https://www.law.cornell.edu/uscode/text/15/1052" target="_blank">Section 2(a) of the Trademark Act</a>
forbids another from registering a mark which “falsely suggest[s] a
connection with persons, living or dead.” This raises the interesting
question of whether DRUMPF falsely connects with Trump. Before the show
aired, the answer would almost certainly be, no. Back then, no one had
heard the term let alone associated it with the candidate. Now, however,
each one of the more than 21 million viewers of the YouTube clip and
the show, and all the members of the greater public that learned of the
name through other media outlets, associate DRUMPF with Trump. Indeed,
that was the very design of the thing. The more important question,
though, is whether it is a “false” connection. I would argue no, it is
not. It is a connection created by a comedian expressing himself. The
public connects the term with Mr. Oliver’s tirade as much (if not more)
than Trump. In that regard, it is a perfectly accurate connection made
by a comedian making fun of a political candidate. No one, in short,
thinks (falsely) that Trump himself is connected to the filing. He is
just (truly) connected to Oliver’s joke.<br />
<br />
Second, <a href="https://www.law.cornell.edu/uscode/text/15/1052" target="_blank">Section 2(c) of the Trademark Act</a>
prevents registration of “a name . . . identifying a particular living
individual except by his written consent.” Assuming that Trump did not
and will not consent, the question in this case becomes whether it
identifies him. Again, before the show aired, almost unequivocally, no.
But Oliver’s goal is to use it as a form of identification for Trump.
So, do we credit that goal and count it as a form of identification, or
do we look at whether Trump himself uses it self-referentially? The
Trademark Office examination manual explains, “Section 2(c) applies not
only to full names, but also . . . nicknames, if there is evidence that
the name identifies a specific living individual who is publicly
connected with the business in which the mark is used, or who is so well
known that such a connection would be assumed.” Is, then, this
“nickname” publicly connected to Trump, or is he so well known that it
would be assumed? We’ll have to see how the USPTO responds, but again I
would argue no, it is publicly connected to a comedian’s ironic
depiction of Trump, not to the particular living individual himself. And
while Trump might be famous, the name DRUMPF is essentially a parody
and few would assume that he identifies with it.<br />
<br />
Third, <a href="https://www.law.cornell.edu/uscode/text/15/1052" target="_blank">Section 2(e)(4) of the Trademark Act</a>
bars registration of any mark which “is primarily merely a surname”
(i.e., a last name). These objections are notoriously hard to overcome
and generally at the discretion of an examiner. Is DRUMPF likely to be
perceived as a last name by the “purchasing public” (which, in this
case, would be users of the claimed website)? Unfortunately for Oliver,
the answer here might be, yes. The difference between this analysis and
the above is that we now don’t care whether it is associated with Trump,
but just whether it is thought of as a last name in general. And, again
thanks to Oliver’s own popularity and messaging, anyone who cares
enough to visit <a href="http://www.donaldjdrumpf.com/" target="_blank">the DRUMPF site </a>would
almost by necessity perceive DRUMPF to be a last name. (Incidentally,
one could write an entire law review article on the separate,
interesting issues relating to the donaldjdrumpf.com URL and <a href="https://www.law.cornell.edu/wex/cybersquatting" target="_blank">cybersquatting</a> , but that will have to wait for another time).<br />
<br />
Finally, under <a href="https://www.law.cornell.edu/uscode/text/15/1051" target="_blank">Section 1(b) of the Trademark Act</a>,
any applicant swears under oath that they have a good faith “bona fide
intention” to use the applied-for mark in commerce in connection with
the services listed in the application. Here, that is provision of a
multimedia website. While usually not an issue at the outset with
intent-to-use applications, Oliver (or, really Drumpf Industries) would
eventually have to show bona fide use of the mark as claimed through a
screen-shot or the like. The problem right now is that the site is
hardly “multimedia”—it is a static page where you can buy a hat or link
to a Google Chrome extension that converts the name Trump into Drumpf.
Oliver could certainly (if he really cared enough) place some multimedia
content on the site before filing his screen-shot, but technically he
would need to have had the intent to do so at the time of filing the
application. So, to truly avoid this sort of challenge, he will need to
demonstrate through some evidence that as of a few weeks ago, Drumpf
Industries (whatever that is) intended to build a true multimedia site.
<br />
<br />
So, will Oliver’s (I mean, Drumpf Industries’) mark ultimately make
it through examination? It seems the Trademark Office (which will
certainly be following this one closely) could make life pretty hard on
the application if it wanted to. But, of course, would anyone even care
at that point?<br />
<br />
<a href="http://www.nesl.edu/faculty/full_time.cfm?facid=355">Peter J. Karol </a>Webmasterhttp://www.blogger.com/profile/05506162355597607649noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-88916141599270990052015-10-21T11:30:00.000-04:002015-12-04T15:21:52.359-05:00Refugees, Migrants, and State ResponsibilityAnyone who has followed the recent refugee crisis will notice the
interchangeable use of the terms “migrant” and “refugee” to describe the
people fleeing Syria, Iraq and North Africa, who are attempting to find
safety and a better life in Europe. Depending upon your source of
news, you might also hear the almost belligerent use of phrases and
words like “economic migrant” and “opening the floodgates.”<br />
<br />
It was Hannah Arendt who used the term <a href="https://books.google.com/books?id=8f2y0F2wzLoC&pg=PA269&lpg=PA269&dq=hannah+arendt+scum+of+the+earth&source=bl&ots=p-Bu4qep6K&sig=woVEGF1dEOaQdkdTMwpDy7CqhUE&hl=en&sa=X&ved=0CB0Q6AEwAGoVChMI5InIwfq9yAIVxh0-Ch36egtm#v=onepage&q=hannah%20arendt%20scum%20of%20the%20earth&f=false" target="_blank">“scum of the earth,”</a>
to describe not the refugees fleeing Nazi control during World War II,
but the treatment they received as they metaphorically washed up on
shores of neighboring countries. She was describing the phenomenon that
transpires when one country or regime has designated some people as
inferior, and how everyone else then views them that way — needy,
dangerous, and likely to cause a run on resources.<br />
<br />
In fact, it was this distaste of refugee flows and the problems that arose when other countries, <a href="http://www.ushmm.org/wlc/en/article.php?ModuleId=10005139" target="_blank">including the United States</a>,
shut their doors on refugees fleeing persecution during World War II
that led to the drafting and ratification of not just the <a href="http://www.unhcr.org/3b66c2aa10.html" target="_blank">1951 Convention on the Status of Refugees</a>, but the creation of the United Nations itself. The drafters’ goal set forth in the <a href="http://www.un.org/en/documents/charter/preamble.shtml" target="_blank">UN Charter</a>,
“to save succeeding generations from the scourge of war,” were as
mindful of the refugee problem as they were the death and destruction
that accompany interstate conflict. Today, of course, many of our
refugee flows emanate from <i>intra</i>state conflict, but the problem
remains the same. If it is not safe to remain in your home, where can
you go and who, if anyone, is legally obliged to take you in?<br />
<br />
It is worth noting at the outset that the “refugee crisis” in Europe
is not new. As early as the late 1990’s, people were departing Libya in
rickety boats, attempting to make land in Europe. Prior to 2011, they
came primarily from Sudan, Somalia, Eritrea, and occasionally Iraq.
Their objectives, though, were the same — fleeing persecution, fleeing
starvation, fleeing sexual violence, and searching for a better life.
Many of these boats capsized, even in the early days before we began
regularly hearing of it. In the summer of 2008, I was visiting a
refugee center outside of Valletta, Malta when one of the refugees
received a call from a sinking boat. His friend was hanging onto a tuna
net in the middle of the ocean, their boat capsized. We were frantic
to reach the navy or coast guard and ask to send out a boat for them,
but there were no coordinates to give. When we reached the naval
responders they told us that looking for this man would be like hunting
for one grain of sand in the desert.<br />
<br />
At least 25,000 people are <a href="http://www.upenn.edu/pennpress/book/15408.html" target="_blank">known</a>
to have died in this manner since 2000. The number is undoubtedly
vastly larger. As early as 1997, Italian naval authorities noted
increasing reports of the foundering and shipwreck of boats departing
from North Africa and Albania. Because in most instances the boats and
the people were long since perished by the time authorities investigated
(when they investigated), these began being referred to as <a href="https://books.google.com/books?id=Ep5ZCgAAQBAJ&pg=PA63&lpg=PA63&dq=phantom+migrant+shipwrecks&source=bl&ots=0Etau9rBj7&sig=68bGAtgRAHuO2o2aliJVCB0jrCA&hl=en&sa=X&ved=0CDYQ6AEwA2oVChMI3qC6vfy9yAIVxDs-Ch12nA46#v=onepage&q=phantom%20migrant%20shipwrecks&f=false" target="_blank">“phantom migrant shipwrecks.”</a>
In the first nine months of 2014 alone, more than 3,000 people
drowned, but now the world’s attention was beginning to focus on the
tragic journey. For a brief time in 2014, several southern European
countries banded together and developed <i>Mare Nostrum</i>, a
“military-humanitarian mission” focused on plotting the course of
refugees (work done by Frontex, the EU external border control agency
established in 2005), and endeavoring to rescue people on foundering
vessels. The operation lasted less than a year before it was ended
through lack of political and economic will to keep it going in the face
of pressure to <i>return</i> refugees, not rescue them and bring them to shore. It is estimated that <a href="http://www.unhcr.org.mt/component/content/article/35-slideshow-news/804-unhcr-chief-issues-key-guidelines-for-dealing-with-europes-refugee-crisis" target="_blank">300,000</a> people have attempted the Mediterranean boat crossing in the first nine months of 2015 alone.<br />
<br />
Although many or even most of those on the boats are legitimate
refugees, people with a legitimate claim for asylum, those operating the
boats are most certainly the worst sort of <a href="http://www.theguardian.com/world/2015/apr/24/libyas-people-smugglers-how-will-they-catch-us-theyll-soon-move-on" target="_blank">smugglers</a>
and human traffickers, profiting from the desperation of their
passengers. These smugglers’ rates depend on their assumptions about
the economic means of refugees based on their countries of origin. A
sub-Saharan African might pay $900, while a Syrian might be charged
$2500; these prices are much reduced from several years ago now that the
“market is saturated.” The fee includes a grueling round of travel
across the southern Libyan Desert, which some say they would rather die
than repeat, before they are delivered to the coast. The boats that
will carry them are packed with 100 — 300 people typically aboard. One
single 100 — 200 mile run from the Libyan coast to Malta or the
southernmost island of Italy might yield a smuggler 90 — 750,000 USD.
Tunisian, Libyan, Italian, Greek, and Maltese fisherman have regularly
encountered foundering boats and, as is required of them under various <a href="http://www.hri.org/docs/LOS/part7-1b.html" target="_blank">laws of the sea</a>, many have assisted and brought the passengers to shore. Only to then themselves be arrested for migrant smuggling.<br />
<br />
In 2003, the countries of the European Union adopted the <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:l33153" target="_blank">Dublin Regulation</a>.
By virtue of this multilateral pact, the European country in which a
potential asylum seeker first set foot had to agree to process his or
her application — anyone seeking asylum in an EU country had to seek it
in the country in which he first landed. This agreement put a
tremendous amount of pressure on countries like Greece, Malta, and
Italy, which initially hosted a large number of asylum seekers, most of
whom wished to seek asylum in the EU, but who were stuck in limbo, many
detained in prison-like camps, hoping to secure an asylum interview or
some processing of an asylum application. It also put a tremendous
strain on the admittedly sporadic ocean search and rescue operations in
effect to try to prevent the multiplying deaths at sea with lack of
clarity even as to whom was responsible for which waters.<br />
<br />
A refugee is a person who has a well-founded fear of being persecuted
due to his race, religion, nationality, political opinion, or
membership in a particular social group. People can be formally and
legally identified as refugees, usually by UNHCR or one of their partner
organizations, and if they are lucky, be picked by a country willing to
resettle them. These people arrive in their new host country as formal
refugees, with documents that identify them legally as such, sometimes
even UN passports called <a href="https://encrypted-tbn2.gstatic.com/images?q=tbn:ANd9GcQrxdWFdjPXJm93v-wRuDVq73s6m8sUrnaxxBV_cQdEajJEi_En" target="_blank">laissez-passer</a>
if they are effectively stateless. Under the terms of the host
countries’ domestic legislation, based on recommendations made by UNCHR
and the Refugee Convention, these refugees are often eligible for food,
shelter, medical assistance, education and job training, if it is
available. Presently, 80% of the world’s refugees are hosted in
developing countries. Neither Lebanon nor Jordan are <a href="http://www.refworld.org/pdfid/505187992.pdf" target="_blank">party</a> to the Refugee Convention. Pakistan currently hosts the largest number of refugees (1.6 million).<br />
<br />
Those who arrive at the border of a potential host country without
the refugee designation are considered asylum seekers. Presently,
Germany, Sweden, and France <a href="http://www.bbc.com/news/world-europe-24636868" target="_blank">host the top number of asylum seekers</a>,
followed by the UK, Italy, Belgium, Hungary, Austria, the Netherlands,
and Poland. The burden is on the asylum applicant to prove he has a
well-founded fear of persecution due to one of the five categories.
Those whose primary motivation is deemed to be “improving their lives”
or the lives of their children are considered <a href="http://www.independent.co.uk/news/world/europe/the-difference-between-asylum-seekers-refugees-and-economic-migrants-10460431.html" target="_blank">“economic migrants,”</a>
not entitled to asylum or the refugee designation. It is almost as if
by electing not to remain in a developing or already overwhelmed
potential host country, a refugee is presumed to be an economic migrant,
unless he can prove otherwise.<br />
<br />
This is why you so often hear the Syrians fleeing to Europe referred
to as “migrants.” The implication is that they are not refugees because
their primary motivation is not fleeing persecution, but rather seeking
a better life. This is also why you hear people saying, “they could
have stayed in the refugee camps in Turkey or Lebanon or Jordan; they
just didn’t want to.” These people are arguing that they were “safe”
from persecution when they hit the first host country; they only left
those camps because they did not like them.<br />
<br />
In order to examine this argument, it is important to understand the
conditions for refugees in those camps, in most camps, really, most of
which are not even “camps,” but actually people trying to find safety in
urban settings, particularly those Syrians in <a href="http://www.aljazeera.com/news/2015/03/lebanon-formal-refugee-camps-syrians-150310073219002.html" target="_blank">Lebanon</a>. To put these host countries in context consider the following: first, <a href="http://www.mercycorps.org/articles/turkey-iraq-jordan-lebanon-syria/quick-facts-what-you-need-know-about-syria-crisis" target="_blank">Turkey</a>
currently hosts almost 2 million refugees, Lebanon hosts over 1
million, and Jordan has more than 600,000. These three countries
already hosted Iraqi refugees before the conflict in Syria even began.
Now Iraq hosts 250,000 Syrian refugees. Secondly, at the time the
conflict began, Syria also hosted thousands of Iraqi and Palestinian
refugees and these people have also been displaced by the conflict. At a
minimum, we can see that these “camps” are <a href="http://www.unhcr.org/54b635b49.html" target="_blank">overcrowded</a>, unsanitary, unsafe, and unwelcoming. They are riddled with human traffickers, <a href="http://www.ilo.org/wcmsp5/groups/public/@arabstates/@ro-beirut/documents/genericdocument/wcms_240438.pdf" target="_blank">child labor</a>,
organized crime networks, and others who would exploit the most
displaced and vulnerable. Many refugees are unable to work, go to
school, or have any real hope of a life for themselves or their
children. Many state that their primary concern is lack of food.<br />
<br />
This is why so many Syrians and Iraqis are seeking to enter Europe,
first through North African routes, and more recently overland (or after
reaching Albania) through Serbia and Hungary. Other factors are also
in play. In 2012, Israel completed its border fence on its border with
Egypt. Eritreans and Somalis who had previously been able to attempt
to flee heading east, now turned west, adding to the flow of people
attempting to depart North Africa by boat, headed for Europe. UNHCR
reported the forced displacement of almost 6 million in the first six
months of 2013 alone, about half Afghans, Somalis, and Syrians
attempting to escape violence and “extraordinary hardship.” In August
2013, UNHCR <a href="http://www.unhcr.org/cgi-bin/texis/vtx/refdaily?pass=52fc6fbd5&id=527892475" target="_blank">estimated</a>
that there were 110,000 Syrian refugees in Libya in 2013. By September
2013, the estimate was 250–300,000 Syrians in Egypt, and Egypt was <a href="http://www.unhcr.org/526114299.html" target="_blank">forcibly returning</a>
them to Syria, Lebanon, Gaza and Turkey. Pressure points have been
building for some time. By 2013, Europe hosted 79% of the total number
of asylum seekers in the world, with the US and Canada together
accounting for 16%.<br />
<br />
Under the UNCHR guidelines, there are three “durable solutions” for
refugees: resettlement, repatriation and local integration. Given the
saturation point in Jordan, Lebanon and Turkey, refugees are effectively
or legally unable to integrate locally. This leaves two solutions —
returning home (not an option) or resettlement to a third country.
Unless or until a third country identifies a refugee and agrees to take
him, resettlement is only a hypothetical. Unless the refugee can get to
that country himself, apply for asylum, and obtain his refugee
designation. This is why Syrians are now flooding into Europe.<br />
<br />
The country claiming to take the largest share of refugees annually
is the United States. There are a few problems with this claim. First,
the cap set by Congress is the number typically cited. Not cited is
the number that <a href="http://www.state.gov/j/prm/releases/statistics/index.htm" target="_blank">actually arrive</a>.
Secondly, several other countries take a much larger share per capita.
Third, when a country publicly agrees to accept one refugee flow,
operations often begin behind the scenes to “hurry along and deport”
asylum seekers already in the country who are perceived to have less
“grantable” claims. One of the goals of the Refugee Convention is to
share the responsibility of meeting the needs of refugees among host
countries. By 2014, UNHCR estimated more than 50 million refugees
worldwide. Countries that might be expected to absorb some Syrian
refugees, like Saudi Arabia, UAE, Kuwait, and Qatar, have taken none.
While they have been silent as to why this is so, speculation centers on
the fears of the leadership of these countries that the relatively
well-educated and cosmopolitan Syrians would shake up the status quo too
much for the these nations. The total number of refugees that
accepting countries agree to take is less than <a href="http://www.unhcr.org/pages/4a16b1676.html" target="_blank">1%</a>
of the total number of refugees in the world. The total number that
countries agree to take is often not a real number. For a variety of
reasons (national security concerns, inefficiency, too long of a waiting
time) countries routinely take far fewer than the total number they
claim to be willing to accept. The United States, for instance,
regularly falls short of its cap (typically set at between 50–70
thousand per year), sometimes by as many as <a href="http://www.state.gov/j/prm/releases/statistics/index.htm" target="_blank">20–25,000 people</a>.<br />
<br />
One new problem with the conflation of refugees fleeing intrastate
conflict and the “war on terror” is that we are looking at millions of
effectively stateless people. In a country like Syria where fear of
Assad has now shifted to fear of ISIS, speculation about whether a
Syrian refugee might have provided material support to a terrorist group
rises, and the likelihood that any will be safe to return home
decreases. The more politicians speculate about the likelihood of
Syrian refugees being terrorists or their supporters, the less likely it
becomes that any country will accept them. There is no evidentiary
requirement that a government prove why it thinks a particular person
might be a terrorist sympathizer and therein not refugee material. A
mere unfounded suspicion is sufficient. When one country speculates
about a particular individual, no one will take that individual
thereafter. The speculation and fear itself renders a large group of
people effectively stateless. One need only remember the <a href="http://www.nytimes.com/2014/01/01/us/us-frees-last-of-uighur-detainees-from-guantanamo.html?_r=0" target="_blank">Uighurs held in Guantanamo by the United States</a> to understand this dynamic.<br />
<br />
It is worth noting a few more things: the refugees flooding into
Europe now are not all Syrian, although the tragic plight of Syrians
fleeing their decimated country provides the face for the current
crisis. Furthermore, the United States has been faced with a similar
crisis over the past few years. In the summer of 2014, the story of the
thousands of <a href="http://www.eldailypost.com/immigration/2015/08/sexual-violence-plagues-young-women-fleeing-central-america/" target="_blank">women</a>
and children fleeing extreme violence in Central America and being
detained on arrival in the United States was regularly in the news
cycle. These women and children have not gone anywhere (except for
those who have been deported), nor have they stopped fleeing, or been
granted asylum, yet their “crisis” has been overtaken even in US news
outlets by the one in Europe. These women and <a href="http://www.wola.org/commentary/central_america_s_child_exodus_one_year_later_the_humanitarian_crisis_is_far_from_over" target="_blank">children</a>,
too, are being denied asylum and deported, cast as “migrants,” not
refugees. The violence they are fleeing, they are told, does not fit
under any of the five categories — a contestable claim, as many similar
asylum cases have been won arguing that the targeting by gangs who
cannot be controlled by their home government constitutes a particular
social group.<br />
<br />
The current “crisis” is a crisis because sovereign nations fear that
the floodgates will open, that they will be unable to control their
borders, that each refugee will <a href="http://www.marketplace.org/topics/world/taking-refugees-has-costs-%E2%80%94-and-potential-benefits" target="_blank">cost</a>
the host government (an estimated $14,000 in the short term, to be
precise, although a long term economic boon), or, inevitably, that they
might be a security risk. The fact remains, though, that these were
the same fears articulated during World War II, and yet we still came
together to form the United Nations and ratify the Refugee Convention in
order to prevent the scourge of future refugees flows depleting the
resources of a few countries. And, it bears remembering, because we
knew it was the right thing to do and we felt shame for having done it
so badly.<br />
<br />
The UN High Commissioner for Refugees (UNHCR) is mandated by the
United Nations to lead and coordinate international action for the
worldwide protection of refugees and the resolution of refugee problems.
Its primary purpose is to safeguard the rights and well-being of
refugees, including by working with states to ensure everyone can access
asylum, seek third country resettlement, or return voluntarily to their
home state (the three “durable solutions”). UNHCR is also charged with
enforcing (or encouraging; they have no enforcement authority) the
principle of <i>non-refoulement</i>, whereby states are prohibited from forcing back or returning anyone who fears persecution in the home state. <a href="http://www.refworld.org/docid/438c6d972.html" target="_blank">Non-Refoulement is jus cogens</a>,
binding even states not party to the Refugee Convention. The
organization is donor funded, and its largest donors have consistently
been member states of Western Europe and the European Union itself,
along with Japan and the United States. Like most UN agencies, UNHCR is
only permitted to operate in a country where it has permission from the
host state. Thus, it begins a fine dance of attempting to lobby the
state hosting a refugee population to do so according to the
requirements of the Refugee Convention, without losing its mandate to
operate in that state by acting too forcefully. UNHCR is currently
operating in Libya “cautiously,” as it has no formal memo of
understanding. Libya remains the transit sending state for most of the
migrants heading to Europe through North Africa. The operating costs
for UNHCR in Libya for 2012 alone amount to more than <a href="http://www.unhcr.org/51b1d639a.html" target="_blank">31 million USD, although only 12.7 million USD was actually available</a>.<br />
<br />
At present, European countries are struggling to come to an agreement
with one another on the share of refugees each will take. At the same
time, anticipating they will take some, several are ridding themselves
of lingering asylum seekers from other parts of the world to make way.
More than <a href="http://www.bbc.com/news/world-europe-34175795" target="_blank">half a million migrants have arrived in Germany</a>
this year, for example. Only about half of those who have already
applied for asylum are from Syria or Iraq. The rest are from struggling
European countries like Albania and Kosovo. Europe is changing its
laws to try to stem the flow of so-called “economic migrants.” As of
August, anyone who makes what is deemed to be a “baseless” or
“frivolous” asylum claim can be barred from re-entering any of the
European Union’s passport-free <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:l33020" target="_blank">Schengen area</a>,
for up to five years. Germany and several other countries have also
begun instituting random passport and document checks within the
Schengen area, effectively altering the notion of the EU as a free
travel zone. Six EU member states are outside of the Schengen zone
(Bulgaria, Croatia, Cyprus, Ireland, Romania, and the UK) and three
non-EU states are within the Schengen zone (Norway, Iceland, and
Switzerland). Bulgaria, Croatia, Cyprus, and Romania have undertaken
an obligation to enter the Schengen zone as part of their EU member
status. Schengen states are only permitted to institute passport checks
as a temporary measure and this has begun in earnest. Since last year,
Austria, a country firmly within the Schengen open border zone, has
stopped and denied entry to at least 2100 non-EU “foreigners” transiting
from Italy.<br />
<br />
The problem with “getting rid of” some applicants to make way for
others is that many assumptions are then made about the viability of an
asylum claim based not on individual circumstances, but on one’s country
of origin. A presumption is set against those from Kosovo or Serbia,
for example, and (potentially) favors someone from Syria. This is not
the way the Refugee Convention is designed to operate. The notion of
the Refugee Convention is that <i>anyone</i> with a well-founded,
credible fear should be able to make that claim, obliging local
authorities to protect anyone successful in doing so.<br />
<br />
Hungary has erected a fence on its border with Serbia. Bulgaria is
planning a fence on its border with Turkey and Greece has already
erected one. Meanwhile, the current US presidential candidates are
outdoing one another with the length and strength of their proposed
border fences. Malta and Italy have attempted to push back people
trying to land on their coasts, even when they were aboard ships that
had rescued them after theirs sank. This should call to mind shiploads
of Jewish European children and refugees attempting to land in the
United States during <a href="http://www.pbs.org/wgbh/amex/holocaust/" target="_blank">World War II</a> and being <a href="http://crfimmigrationed.org/index.php/lessons-for-teachers/144-hl5" target="_blank">denied entry</a>. Or the shiploads of Europeans attempting to flee violence in Europe during World War II by <a href="http://imgur.com/Hy0pGZ5" target="_blank">fleeing to North Africa</a>.
When we take the long view, it becomes easier to see why aiding
refugees now is important for all of our sakes and all of our safety.
When we operate out of fear, we are taking the short view.<br />
<br />
Presently, we are operating out of fear. Certainly the refugees
fleeing persecution and the migrants seeking a better life are, but
also, and maybe most importantly, the nation-states into which these
refugees and migrants hope to make their way are also. Instead of
operating out of fear, we need to honor the agreements we committed to
in creating the United Nations and ratifying the Refugee Convention.
We need to remember the spirit in which we committed to these
principles, and then we need to carry out these principles and protect
refugees.<br />
<br />
<a href="http://www.nesl.edu/faculty/full_time.cfm?facid=20">Dina Francesca Haynes </a><br />
<b>
</b>
<br />
<div style="text-align: right;">
<b><br /></b></div>
Webmasterhttp://www.blogger.com/profile/05506162355597607649noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-68971246948908040062015-09-14T15:02:00.000-04:002015-12-04T15:27:47.892-05:00Do Elite Universities Abuse their Tax Subsidies?<!--[if gte mso 9]><xml>
<o:OfficeDocumentSettings>
<o:AllowPNG/>
</o:OfficeDocumentSettings>
</xml><![endif]--><br />
<!--[if gte mso 9]><xml>
<w:WordDocument>
<w:View>Normal</w:View>
<w:Zoom>0</w:Zoom>
<w:TrackMoves/>
<w:TrackFormatting/>
<w:PunctuationKerning/>
<w:ValidateAgainstSchemas/>
<w:SaveIfXMLInvalid>false</w:SaveIfXMLInvalid>
<w:IgnoreMixedContent>false</w:IgnoreMixedContent>
<w:AlwaysShowPlaceholderText>false</w:AlwaysShowPlaceholderText>
<w:DoNotPromoteQF/>
<w:LidThemeOther>EN-US</w:LidThemeOther>
<w:LidThemeAsian>X-NONE</w:LidThemeAsian>
<w:LidThemeComplexScript>X-NONE</w:LidThemeComplexScript>
<w:Compatibility>
<w:BreakWrappedTables/>
<w:SnapToGridInCell/>
<w:WrapTextWithPunct/>
<w:UseAsianBreakRules/>
<w:DontGrowAutofit/>
<w:SplitPgBreakAndParaMark/>
<w:EnableOpenTypeKerning/>
<w:DontFlipMirrorIndents/>
<w:OverrideTableStyleHps/>
</w:Compatibility>
<m:mathPr>
<m:mathFont m:val="Cambria Math"/>
<m:brkBin m:val="before"/>
<m:brkBinSub m:val="--"/>
<m:smallFrac m:val="off"/>
<m:dispDef/>
<m:lMargin m:val="0"/>
<m:rMargin m:val="0"/>
<m:defJc m:val="centerGroup"/>
<m:wrapIndent m:val="1440"/>
<m:intLim m:val="subSup"/>
<m:naryLim m:val="undOvr"/>
</m:mathPr></w:WordDocument>
</xml><![endif]--><!--[if gte mso 9]><xml>
<w:LatentStyles DefLockedState="false" DefUnhideWhenUsed="true"
DefSemiHidden="true" DefQFormat="false" DefPriority="99"
LatentStyleCount="267">
<w:LsdException Locked="false" Priority="0" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Normal"/>
<w:LsdException Locked="false" Priority="9" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="heading 1"/>
<w:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 2"/>
<w:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 3"/>
<w:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 4"/>
<w:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 5"/>
<w:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 6"/>
<w:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 7"/>
<w:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 8"/>
<w:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 9"/>
<w:LsdException Locked="false" Priority="39" Name="toc 1"/>
<w:LsdException Locked="false" Priority="39" Name="toc 2"/>
<w:LsdException Locked="false" Priority="39" Name="toc 3"/>
<w:LsdException Locked="false" Priority="39" Name="toc 4"/>
<w:LsdException Locked="false" Priority="39" Name="toc 5"/>
<w:LsdException Locked="false" Priority="39" Name="toc 6"/>
<w:LsdException Locked="false" Priority="39" Name="toc 7"/>
<w:LsdException Locked="false" Priority="39" Name="toc 8"/>
<w:LsdException Locked="false" Priority="39" Name="toc 9"/>
<w:LsdException Locked="false" Priority="35" QFormat="true" Name="caption"/>
<w:LsdException Locked="false" Priority="10" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Title"/>
<w:LsdException Locked="false" Priority="1" Name="Default Paragraph Font"/>
<w:LsdException Locked="false" Priority="11" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Subtitle"/>
<w:LsdException Locked="false" Priority="22" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Strong"/>
<w:LsdException Locked="false" Priority="20" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Emphasis"/>
<w:LsdException Locked="false" Priority="59" SemiHidden="false"
UnhideWhenUsed="false" Name="Table Grid"/>
<w:LsdException Locked="false" UnhideWhenUsed="false" Name="Placeholder Text"/>
<w:LsdException Locked="false" Priority="1" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="No Spacing"/>
<w:LsdException Locked="false" Priority="60" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Shading"/>
<w:LsdException Locked="false" Priority="61" SemiHidden="false"
UnhideWhenUsed="false" Name="Light List"/>
<w:LsdException Locked="false" Priority="62" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Grid"/>
<w:LsdException Locked="false" Priority="63" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 1"/>
<w:LsdException Locked="false" Priority="64" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 2"/>
<w:LsdException Locked="false" Priority="65" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 1"/>
<w:LsdException Locked="false" Priority="66" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 2"/>
<w:LsdException Locked="false" Priority="67" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 1"/>
<w:LsdException Locked="false" Priority="68" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 2"/>
<w:LsdException Locked="false" Priority="69" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 3"/>
<w:LsdException Locked="false" Priority="70" SemiHidden="false"
UnhideWhenUsed="false" Name="Dark List"/>
<w:LsdException Locked="false" Priority="71" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Shading"/>
<w:LsdException Locked="false" Priority="72" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful List"/>
<w:LsdException Locked="false" Priority="73" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Grid"/>
<w:LsdException Locked="false" Priority="60" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Shading Accent 1"/>
<w:LsdException Locked="false" Priority="61" SemiHidden="false"
UnhideWhenUsed="false" Name="Light List Accent 1"/>
<w:LsdException Locked="false" Priority="62" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Grid Accent 1"/>
<w:LsdException Locked="false" Priority="63" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 1 Accent 1"/>
<w:LsdException Locked="false" Priority="64" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 2 Accent 1"/>
<w:LsdException Locked="false" Priority="65" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 1 Accent 1"/>
<w:LsdException Locked="false" UnhideWhenUsed="false" Name="Revision"/>
<w:LsdException Locked="false" Priority="34" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="List Paragraph"/>
<w:LsdException Locked="false" Priority="29" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Quote"/>
<w:LsdException Locked="false" Priority="30" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Intense Quote"/>
<w:LsdException Locked="false" Priority="66" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 2 Accent 1"/>
<w:LsdException Locked="false" Priority="67" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 1 Accent 1"/>
<w:LsdException Locked="false" Priority="68" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 2 Accent 1"/>
<w:LsdException Locked="false" Priority="69" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 3 Accent 1"/>
<w:LsdException Locked="false" Priority="70" SemiHidden="false"
UnhideWhenUsed="false" Name="Dark List Accent 1"/>
<w:LsdException Locked="false" Priority="71" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Shading Accent 1"/>
<w:LsdException Locked="false" Priority="72" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful List Accent 1"/>
<w:LsdException Locked="false" Priority="73" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Grid Accent 1"/>
<w:LsdException Locked="false" Priority="60" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Shading Accent 2"/>
<w:LsdException Locked="false" Priority="61" SemiHidden="false"
UnhideWhenUsed="false" Name="Light List Accent 2"/>
<w:LsdException Locked="false" Priority="62" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Grid Accent 2"/>
<w:LsdException Locked="false" Priority="63" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 1 Accent 2"/>
<w:LsdException Locked="false" Priority="64" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 2 Accent 2"/>
<w:LsdException Locked="false" Priority="65" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 1 Accent 2"/>
<w:LsdException Locked="false" Priority="66" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 2 Accent 2"/>
<w:LsdException Locked="false" Priority="67" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 1 Accent 2"/>
<w:LsdException Locked="false" Priority="68" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 2 Accent 2"/>
<w:LsdException Locked="false" Priority="69" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 3 Accent 2"/>
<w:LsdException Locked="false" Priority="70" SemiHidden="false"
UnhideWhenUsed="false" Name="Dark List Accent 2"/>
<w:LsdException Locked="false" Priority="71" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Shading Accent 2"/>
<w:LsdException Locked="false" Priority="72" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful List Accent 2"/>
<w:LsdException Locked="false" Priority="73" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Grid Accent 2"/>
<w:LsdException Locked="false" Priority="60" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Shading Accent 3"/>
<w:LsdException Locked="false" Priority="61" SemiHidden="false"
UnhideWhenUsed="false" Name="Light List Accent 3"/>
<w:LsdException Locked="false" Priority="62" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Grid Accent 3"/>
<w:LsdException Locked="false" Priority="63" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 1 Accent 3"/>
<w:LsdException Locked="false" Priority="64" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 2 Accent 3"/>
<w:LsdException Locked="false" Priority="65" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 1 Accent 3"/>
<w:LsdException Locked="false" Priority="66" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 2 Accent 3"/>
<w:LsdException Locked="false" Priority="67" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 1 Accent 3"/>
<w:LsdException Locked="false" Priority="68" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 2 Accent 3"/>
<w:LsdException Locked="false" Priority="69" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 3 Accent 3"/>
<w:LsdException Locked="false" Priority="70" SemiHidden="false"
UnhideWhenUsed="false" Name="Dark List Accent 3"/>
<w:LsdException Locked="false" Priority="71" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Shading Accent 3"/>
<w:LsdException Locked="false" Priority="72" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful List Accent 3"/>
<w:LsdException Locked="false" Priority="73" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Grid Accent 3"/>
<w:LsdException Locked="false" Priority="60" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Shading Accent 4"/>
<w:LsdException Locked="false" Priority="61" SemiHidden="false"
UnhideWhenUsed="false" Name="Light List Accent 4"/>
<w:LsdException Locked="false" Priority="62" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Grid Accent 4"/>
<w:LsdException Locked="false" Priority="63" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 1 Accent 4"/>
<w:LsdException Locked="false" Priority="64" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 2 Accent 4"/>
<w:LsdException Locked="false" Priority="65" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 1 Accent 4"/>
<w:LsdException Locked="false" Priority="66" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 2 Accent 4"/>
<w:LsdException Locked="false" Priority="67" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 1 Accent 4"/>
<w:LsdException Locked="false" Priority="68" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 2 Accent 4"/>
<w:LsdException Locked="false" Priority="69" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 3 Accent 4"/>
<w:LsdException Locked="false" Priority="70" SemiHidden="false"
UnhideWhenUsed="false" Name="Dark List Accent 4"/>
<w:LsdException Locked="false" Priority="71" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Shading Accent 4"/>
<w:LsdException Locked="false" Priority="72" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful List Accent 4"/>
<w:LsdException Locked="false" Priority="73" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Grid Accent 4"/>
<w:LsdException Locked="false" Priority="60" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Shading Accent 5"/>
<w:LsdException Locked="false" Priority="61" SemiHidden="false"
UnhideWhenUsed="false" Name="Light List Accent 5"/>
<w:LsdException Locked="false" Priority="62" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Grid Accent 5"/>
<w:LsdException Locked="false" Priority="63" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 1 Accent 5"/>
<w:LsdException Locked="false" Priority="64" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 2 Accent 5"/>
<w:LsdException Locked="false" Priority="65" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 1 Accent 5"/>
<w:LsdException Locked="false" Priority="66" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 2 Accent 5"/>
<w:LsdException Locked="false" Priority="67" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 1 Accent 5"/>
<w:LsdException Locked="false" Priority="68" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 2 Accent 5"/>
<w:LsdException Locked="false" Priority="69" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 3 Accent 5"/>
<w:LsdException Locked="false" Priority="70" SemiHidden="false"
UnhideWhenUsed="false" Name="Dark List Accent 5"/>
<w:LsdException Locked="false" Priority="71" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Shading Accent 5"/>
<w:LsdException Locked="false" Priority="72" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful List Accent 5"/>
<w:LsdException Locked="false" Priority="73" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Grid Accent 5"/>
<w:LsdException Locked="false" Priority="60" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Shading Accent 6"/>
<w:LsdException Locked="false" Priority="61" SemiHidden="false"
UnhideWhenUsed="false" Name="Light List Accent 6"/>
<w:LsdException Locked="false" Priority="62" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Grid Accent 6"/>
<w:LsdException Locked="false" Priority="63" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 1 Accent 6"/>
<w:LsdException Locked="false" Priority="64" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 2 Accent 6"/>
<w:LsdException Locked="false" Priority="65" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 1 Accent 6"/>
<w:LsdException Locked="false" Priority="66" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 2 Accent 6"/>
<w:LsdException Locked="false" Priority="67" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 1 Accent 6"/>
<w:LsdException Locked="false" Priority="68" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 2 Accent 6"/>
<w:LsdException Locked="false" Priority="69" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 3 Accent 6"/>
<w:LsdException Locked="false" Priority="70" SemiHidden="false"
UnhideWhenUsed="false" Name="Dark List Accent 6"/>
<w:LsdException Locked="false" Priority="71" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Shading Accent 6"/>
<w:LsdException Locked="false" Priority="72" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful List Accent 6"/>
<w:LsdException Locked="false" Priority="73" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Grid Accent 6"/>
<w:LsdException Locked="false" Priority="19" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Subtle Emphasis"/>
<w:LsdException Locked="false" Priority="21" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Intense Emphasis"/>
<w:LsdException Locked="false" Priority="31" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Subtle Reference"/>
<w:LsdException Locked="false" Priority="32" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Intense Reference"/>
<w:LsdException Locked="false" Priority="33" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Book Title"/>
<w:LsdException Locked="false" Priority="37" Name="Bibliography"/>
<w:LsdException Locked="false" Priority="39" QFormat="true" Name="TOC Heading"/>
</w:LatentStyles>
</xml><![endif]-->A <a href="http://www.nytimes.com/2015/08/19/opinion/stop-universities-from-hoarding-money.html?_r=0" target="_blank">recent op-ed</a> in the <i>New York Times</i> with the provocative title “Stop Universities
from Hoarding Money” <a href="http://www.boston.com/news/education/higher/articles/2008/12/19/school_endowments_saving_for_what/" target="_blank">once again</a> raises the issue of university endowments. It focuses in large part
on the extraordinary amounts elite universities either “hoard” or spend on fees
to investment advisors and hedge funds in contrast to the much smaller sums
spent on “tuition assistance, fellowships and prizes,” those things seen as the
university’s true mission. The <a href="https://www.sandiego.edu/law/faculty/profiles/bio.php?ID=1027" target="_blank">author</a>,
a tax professor, suggests that universities with endowments in excess of $100
million should be required to expend at least eight percent of their endowments
each year. This is not a new proposal; <a href="http://www.boston.com/news/education/higher/articles/2008/02/28/colleges_guard_soaring_endowments/?page=full" target="_blank">similar proposals arise periodically</a>. Of course entities with such large sums
(Harvard’s endowment is <a href="http://www.usnews.com/education/best-colleges/the-short-list-college/articles/2015/01/13/10-universities-with-the-largest-financial-endowments" target="_blank">reported to exceed $32.5 billion</a>) are formidable players in politics so these calls
generally go unheeded.<br />
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
To understand why we all have an interest in these matters one
must know a thing or two about federal tax law as it applies to charitable
organizations. Universities are classified as “public charities” which status means
that they can generally earn and accumulate money exempt from federal income
tax. Policy experts sometimes refer to these benefits as a taxpayer “<a href="http://www.stetson.edu/law/lawreview/media/theories-of-the-federal-income-tax-exemption-for-charities-thesis-antithesis-and-syntheses-27-2.pdf" target="_blank">subsidy</a>,”
to the university, because exempting the university from tax is the same as
taxing it like other entities and then returning to it its tax payments rather
than using them for other public benefit. Imagine the potential tax liability of
an institution like Harvard if its receipts (tuition, income and gains on
investments) were subject to the income tax. That figure would reach at least
tens of millions of dollars annually. The idea behind the tax exemption, of
course, is that it allows universities to provide more research, knowledge and
education—all seen as public goods. And tax-exemption is not the only federal
tax subsidy from which universities benefit. Donors’ taxes are reduced when
they make contributions to universities through generous tax deductions. Like
exempting universities from the income tax, subsidizing donations to those
institutions with taxpayer dollars increases the availability of the public
goods produced by universities.<br />
<br /></div>
<div class="MsoNormal">
By implementing the foregoing tax benefits, Congress apparently
assumed that we (the taxpayers) are getting what we pay for. But is that true
as respects university endowments? Why does Harvard have $32.5 billion and what
is it doing with all that money? Why did Yale pay <a href="http://www.nytimes.com/2015/08/19/opinion/stop-universities-from-hoarding-money.html?_r=0" target="_blank">$480 million to private equity fund managers compared with $170 million for tuition assistance, fellowships and prizes</a>? Should these wealthy elite universities
be spending more of their endowments on their core mission? That question has
been considered by a couple of scholars. Unfortunately, the results seem to
suggest that when it comes to at least some university endowments, we are not,
in fact, getting what we pay for.</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
It seems to be generally accepted that a university should
spend no more of its endowment than the endowment generates in income and
(perhaps) capital appreciation. Many spend income only and allow capital
appreciation to accrue, which will generally allow an endowment to grow much
larger over time. These practices are justified on the basis of
“intergenerational equity.” Maintaining the endowment’s value over time means
that it can continue to support the university’s activities indefinitely. But a
<a href="http://www.jstor.org/stable/724411?seq=1#page_scan_tab_contents" target="_blank">1990 study</a>
found that the basis for the intergenerational equity argument had little merit.
And the fact remains that elite university endowments are growing at
substantial rates.</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
A <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1444978" target="_blank">more recent study</a>, undertaken in 2010 sought to determine why universities, in the immediate
aftermath of the 2008 financial crisis, slashed operating budgets, laid off
employees, froze salaries, and delayed expansion projects, among other things,
rather than dipping into multibillion dollar endowments. Reasons given by the
universities were that pre-crisis spending was unsustainable, the endowments
were legally restricted as to use, and that the investments were generally
illiquid and difficult to access. This study found each of these reasons to be
unpersuasive. The author concluded that the endowments served primarily as
status symbols, and that universities would reach for any other source of
funding to avoid diminishing their endowments.</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
There is certainly precedent for requiring tax-exempt
organizations to expend a minimum percentage of their assets. <a href="http://www.irs.gov/Charities-&-Non-Profits/Charitable-Organizations/Private-Foundations" target="_blank">Private foundations</a> are different from public charities in that rather than being
supported by a wide range of public contributions they might be funded only by
one family or even one individual. Because private foundations are not
“publicly-supported” federal tax statutes require them to expend at least five
percent of their net investment assets on charitable endeavors each year.
Failure to comply subjects them to a potentially crippling <a href="http://www.irs.gov/Charities-&-Non-Profits/Private-Foundations/Taxes-on-Private-Foundation-Failure-to-Distribute-Income" target="_blank">penalty tax</a>. Under the same principle, universities should be using their tax-subsidized
endowments to support their core charitable missions. Those who don’t should be
penalized.</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<a href="http://www.nesl.edu/faculty/full_time.cfm?facid=34" target="_blank">Kent D. Schenkel</a></div>
Webmasterhttp://www.blogger.com/profile/05506162355597607649noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-13602720458958749522015-09-01T10:49:00.000-04:002015-12-04T15:19:22.163-05:00Tribute to a MentorOn Monday, August 31, Gregory Hobbs will step down as Associate
Justice of the Colorado Supreme Court, a position he has held for the
past nineteen years. I was extremely fortunate to serve as a law clerk
for Justice Hobbs for the 2000–2001 term. On the occasion of his
retirement from the bench, I wanted to add my voice to the chorus of
praise for this extraordinary public servant.<br />
<br />
Justice Hobbs was (is!) a water law expert, a historian, a poet, a
keen cultural observer, and a man with his finger on the pulse of the
communities he served. More than once during my clerkship, he reminded
me that the Court’s authority came with profound responsibility: each
decision directly affected lives and livelihoods. There was no place
for judicial (or judicial clerk) egotism or haughtiness. At a time when
the news cycle and daytime television converged to create a culture
celebrating sassy, snarky judges, Justice Hobbs was always a jurist of
remarkable care and humility.<br />
<br />
But a commitment to judicial humility still left plenty of room for
the Justice to make his individual mark. “There is a second story in
the footnotes,” he once said to me during my clerkship. He was talking
about his majority opinion in <a href="https://scholar.google.com/scholar_case?case=4322513606761673494&q=Board+of+County+Commissioners+v.+Vail+Associates,+Inc.,+&hl=en&as_sdt=40000006" target="_blank"><em>Board of County Commissioners v. Vail Associates, Inc.</em>,</a>
an opus of an opinion that concerned a head-spinning series of
exemptions to the general rule allowing counties to impose property
taxes. The opinion was a careful parsing of case law and statutory and
constitutional text, but it was also a fascinating jaunt into Colorado’s
history. There <em>was</em> a second story in the footnotes, taking
readers on a ride from 1877 to the turn of the twenty-first century, and
folding in references to mining, farming, ranching, and skiing—the
things that make Colorado uniquely Colorado.<br />
<br />
I think of that opinion whenever I think of Justice Hobbs, because he
too is uniquely Colorado, and because his influence on me and my career
can, in a sense, be found in the footnotes as well. Well after my
clerkship ended, I have come to regard him as a mentor and an example.
It comes in the way he conducts himself as a father, grandfather,
husband, friend, boss, and jurist. It comes in the humility he has
always shown for his judicial position, and the constant recognition
that doing what is right by the law is not always easy. It comes in his
love of the State of Colorado, its people, and its institutions. It
comes in his ability to stand by his principles while remaining willing
to reevaluate his positions. It is a rare judge—indeed, a rare
person—who can approach his job with such pleasure, dignity and candor
day in and day out. The interaction between Justice Hobbs and his
clerks, and among the Justices themselves, gave me a deep appreciation
for how appellate decisionmaking <em>should</em> work. Those moments
still influence me as a law professor today: I spend most of my time
teaching, thinking, and writing about how judges decide cases and how
judicial behavior influences others in the legal system.<br />
<br />
So the text of my time clerking may read, “Law Clerk, Hon. Gregory J.
Hobbs, Jr., Colorado Supreme Court, 2000–2001,” but the real story is
in the footnotes. The people of Colorado have been blessed to have
Justice Hobbs on the Court for almost 20 years. I have been blessed to
know him for nearly fifteen years, where his example has been a constant
influence. Thank you, GJH.<br />
<br />
<a href="https://www.nesl.edu/faculty/full_time.cfm?facid=298" target="_blank">Jordan M. Singer</a>Webmasterhttp://www.blogger.com/profile/05506162355597607649noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-32315249202269849822015-09-01T10:42:00.000-04:002015-09-01T10:42:19.487-04:00Obergefell and the Future of Plural MarriageIn an <a href="http://www.nytimes.com/2015/07/21/opinion/is-polygamy-next.html" target="_blank">opinion piece</a> for the <em>New York Times</em>, Professor William Baude suggested that, following the Supreme Court’s decision in <a href="http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf" target="_blank"><em>Obergefell v. Hodges</em></a>
striking down prohibitions on same-sex marriage, the door may well be
open to the argument that bans on plural marriage should fall as well.
Baude takes as his cue the suggestion in the dissent of Chief Justice
John Roberts that “[o]ne immediate question invited by the [<em>Obergefell</em>] majority’s position is whether States may retain the definition of marriage as a union of two people.”<br />
<br />
The answer is, of course, “yes.” Explaining why, though, may take some doing. As my colleague, <a href="https://www.nesl.edu/faculty/full_time.cfm?facid=298" target="_blank">Jordan Singer</a>, has noted, the decision in <em>Obergefell</em> was, at a minimum, “<a href="http://newenglrev.com/2015/07/28/recent-supreme-court-term-the-supreme-court-openly-challenges-its-own-legacy/#befuddling" target="_blank">befuddling.</a>”
One reason is because its author, Justice Anthony Kennedy, eschewed a
traditional equal protection analysis for the kind of soaring rhetoric
that has become a hallmark of his opinions in the area of individual
rights. Though the respect he accords the subject matter is notable, at
the end of the day, lower courts, state government officials and lawyers
need a good deal more to be able to understand the limits of our
constitutional commitment to equality.<br />
<br />Had Kennedy embraced a traditional equal protection analysis—as did the Massachusetts Supreme Judicial Court in <a href="http://scholar.google.com/scholar_case?q=goodridge+v.+department+of+public+health&hl=en&as_sdt=6,33&as_vis=1&case=16499869016395834644&scilh=0" target="_blank"><em>Goodridge v. Department of Public Health</em></a>,
the first decision to overturn a same-sex marriage ban—the force of the
Chief Justice’s predictions about plural marriage likely would have
been blunted. To understand why, we must remember that, despite the fact
that it is fundamental, unlike nearly all other individual
constitutional rights—both explicit and implicit—the right to marry does
not exist unless the state provides for it. In other words, the
Constitution does not compel states to offer their citizens the
opportunity to enter into the legal relationship known as marriage. But
if a state chooses to offer its citizens that opportunity, it cannot
discriminate against parties who seek to enter into marriage absent some
legitimate basis for doing so.<br />
<br />
As numerous federal and state courts have concluded, there is no
legitimate basis for excluding same-sex couples from marriage. Though as
a historical matter such couples were not eligible for marriage, that
is not a valid argument for continuing to prohibit them from marrying
when they otherwise satisfy the structural requirements for eligibility.
Those requirements contemplate two parties who have consented to be
married in the eyes of the law, so that they may both enjoy the
particular benefits that this binary legal relationship provides and
undertake the particular responsibilities it assigns. Nothing about the
inherent nature of those benefits and responsibilities disables same-sex
couples from entering into marriage.<br />
<br />
The point here is that every state has limited marriage to a union of
two—and only two—parties. That binary relationship forms the structural
core of the institution of marriage. For a court to hold same-sex
couples equally eligible to enter into that relationship no more changed
the definition of marriage than would an order foreclosing a state from
declining to provide a particular opportunity to otherwise qualified
members of the opposite sex. See <a href="http://scholar.google.com/scholar_case?q=united+states+v.+virginia&hl=en&as_sdt=6,33&as_vis=1&case=1428365285620704265&scilh=0" target="_blank"><em>United States v. Virginia</em></a>. On the other hand, for a court to order that a state must extend the opportunity to enter into marriage to <em>any</em>
combination of parties who desire it would take that court well beyond
the judicial role contemplated by current equal protection doctrine.<br />
<br />
To illustrate, consider this hypothetical situation: suppose in response to <em>Obergefell</em>
the state of Pennsyltucky decided to get out of the marriage business
altogether—in other words, suppose the state decided not to offer its
citizens the opportunity to enter into any form of civil marriage. Could
a court order the state to <em>create</em> that legal relationship,
with all of the public and administrative costs associated with managing
it? No more than a court could order a state to provide funds to allow
aspiring but impoverished political candidates to run for office. It’s
equally unlikely a court would order a state that currently offers its
citizens the opportunity to enter into binary marriage—which is to say,
every state under current law—to admit any number of parties to that
relationship. Unlike the relief requested by the plaintiffs in <em>Obergefell</em>, such an order would in fact change the structural definition of marriage.<br />
<br />
At bottom, multiple-party relationships simply aren’t the same as
two-party relationships. The binary relationship—and not the genders of
the parties to it—lies at the heart of marriage as the states have
defined it today. Plural marriage may come, but it will be the result of
legislative rather than judicial action.<br />
<br />
<a href="http://www.nesl.edu/faculty/full_time.cfm?facid=15" target="_blank">Lawrence Friedman </a>Webmasterhttp://www.blogger.com/profile/05506162355597607649noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-2778977732495971102015-08-05T10:41:00.000-04:002015-08-05T10:44:46.833-04:00Recent Supreme Court Term: The Supreme Court Openly Challenges Its Own Legacy<br />
One of the more politically opportune reactions to the final week of the Supreme Court Term came from Senator Ted Cruz. His <a href="http://thehill.com/blogs/blog-briefing-room/246349-cruz-supreme-court-justices-should-face-elections" target="_blank">proposal</a>:
a Constitutional amendment that would replace life tenure for the
Supreme Court with periodic retention elections. Under the Cruz plan,
each Justice would face the voters in the second national election after
initial confirmation, and every eight years thereafter. Justices would
need a simple majority of “retain” votes to stay on the bench.
Justices who are not retained would be replaced and would not be
eligible for reappointment.<br />
<br />
The Senator <a href="http://www.nationalreview.com/article/420409/ted-cruz-supreme-court-constitutional-amendment" target="_blank">couched his proposal</a>
as a response to “a long line of judicial assaults on our Constitution
and the common-sense values that have made America great.” Offering
some red meat for his conservative base, he added that retention
elections would provide a remedy for “the decisions that have deformed
our constitutional order and have debased our culture” by “giving the
people the regular, periodic power to pass judgment on the judgments of
their judges.”<br />
<br />
As a tool of partisan accountability, the proposal shouldn’t work.
Retention elections have been used at the state level for 75 years, and
only in very rare instances—California in 1986, Iowa in 2010—have
multiple justices on a single court lost retention elections in the wake
of a politically controversial ruling. Citizen anger over controversial
decisions generally does not translate into judges being kicked off the
bench. Put another way, retention voters are assessing something more
than mere case outcomes when determining whether to keep a judge in
office.<br />
<br />
This may seem surprising, given that politicians routinely try to
rally their bases in reaction to Supreme Court decisions they disfavor.
(Consider the left’s reaction to <a href="http://www.supremecourt.gov/opinions/09pdf/08-205.pdf" target="_blank"><i>Citizens United</i></a> or <a href="http://www.supremecourt.gov/opinions/07pdf/07-290.pdf" target="_blank"><i>Heller</i></a>, or the right’s reaction to <a href="http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf" target="_blank"><i>Sebelius</i></a> or <a href="http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf" target="_blank"><i>Obergefell</i></a>.) But ordinary voters don’t think like politicians. As I have documented <a href="http://msulawreview.org/wp-content/uploads/2012/09/2011-5_Singer_Pagination_6-23-12.pdf" target="_blank">here</a> and <a href="http://www.buffalolaw.org/docket/content/60/Singer.pdf" target="_blank">here</a>,
to everyday citizens, a judge’s perceived commitment to a fair legal
process is far more important than specific case outcomes. Voters will
forgive a judge with whose rulings they disagree as long as those
rulings appear to have been reached fairly and with respect for the
court’s (often circumscribed) institutional role. Voters are less
forgiving, however, when a judge appears to have intruded into the
domain of the legislature, acted obnoxiously, or reached a decision that
lacks a solid legal grounding.<br />
<br />
Senator Cruz is a smart man, and he must know that voters assess
judges differently than they do legislators or executives. So I doubt
he is using retention merely as a conduit for channeling partisan anger.
Quite the opposite: he appears to be <i>counting</i> on voters to
assess the Justices on their commitment to procedural fairness and
institutional humility, and to find that commitment lacking.<br />
<br />
Unfortunately, in this regard the Supreme Court has not helped its own cause. The series of befuddling opinions in <a href="http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pd" target="_blank"><i>Obergefell v. Hodges</i></a>
nicely illustrates the problem. Justice Kennedy’s majority opinion on
same-sex marriage was laden with soaring, poetic rhetoric about the
profundity of marriage and the entitlement of all people to “equal
dignity in the eyes of the law.” One is apt to agree with these
sentiments as a matter of policy or even morality. But a constitutional
exegesis demands something more. The <i>Obergefell</i> majority
never cleanly and clearly explained why it was the province of the
Supreme Court to accomplish what Congress and state legislatures might
have (eventually) done themselves. Indeed, <i>Obergefell</i> was
arguably far less grounded in the constitutional text than either of the
equivalent efforts on same-sex marriage offered by the <a href="http://www.iowacourts.gov/wfData/files/Varnum/07-1499%281%29.pdf" target="_blank">Iowa Supreme Court</a> and <a href="http://masscases.com/cases/sjc/440/440mass309.html" target="_blank">Massachusetts Supreme Judicial Court</a>
years earlier. In doing so, the majority opened the door to criticisms
that the Court had overstepped its institutional bounds.<br />
<br />
The dissenting opinions subsequently pulled that door right off its
hinges. The Chief Justice lamented, “The majority’s decision is an act
of will, not legal judgment…. Just who do we think we are?” He went on:
“Five lawyers have closed the debate and enacted their own view of
marriage as a matter of constitutional law.” Justice Scalia went
further, charging that the majority opinion “lack[ed] even a thin veneer
of law” and ruling a “system of government that makes the People
subordinate to a committee of nine unelected lawyers.” Justice Alito
picked up the same theme, warning that the Constitution forbids “five
unelected Justices from imposing their personal vision of liberty upon
the American people.” Only Justice Thomas constrained his dissenting
opinion to a legalist discussion about constitutional meaning.<br />
<br />
As a debate over national policy or constitutional philosophy, the five <i>Obergefell</i>
opinions make fascinating and important reading. As a vehicle for
increasing, or even sustaining, the institutional legitimacy of the
court, however, they are collectively a train wreck. Anyone who reads
the majority opinion and suspects the court of moderately overstepping
its institutional role will, upon reading the dissents, find a far more
grievous critique. The Court, we are told, undermined the core of
American democracy through unelected lawyers and (in Justice Scalia’s
inimitable words) “judicial Putsch.” Even if one agrees with the
outcome of the case (and I count myself among them), the internecine
squabbling over institutional overreach is deeply unsettling. The
majority could have worked harder to formulate an opinion that sounded
less like public policy, and the dissenters could have made their points
with far more responsible rhetorical flourish. No wonder Senator Cruz
felt that the public might be ready for retention elections.<br />
<br />
Thanks to the court’s self-flagellation, the Cruz proposal cannot be
treated as mere pandering to his right-leaning base. Public respect for
the judiciary is near a <a href="http://www.gallup.com/poll/4732/supreme-court.aspx" target="_blank">15-year low</a>,
and allegations by the Justices that their own colleagues do not
respect the rule of law cannot help. Those who want to see the Court
regain its lost institutional legitimacy can only hope that the Justices
recognize the damage that comes from their public dysfunction, and
collectively work to repair it.<br />
<br />
<a href="https://www.nesl.edu/faculty/full_time.cfm?facid=298" target="_blank">Jordan M. Singer</a> <br />
<div style="text-align: right;">
<b><br /></b></div>
Webmasterhttp://www.blogger.com/profile/05506162355597607649noreply@blogger.com1tag:blogger.com,1999:blog-5879631265938906186.post-67175913060474242782015-08-05T10:27:00.003-04:002015-12-04T15:22:54.312-05:00Recent Supreme Court Term: King v. Burwell<div class="entry-title">
<br />
<span style="font-weight: normal;">“The issue in this case is whether the Act’s [the Affordable
Care Act] tax credits are available in States that have a Federal
Exchange rather than a State Exchange.” <a href="http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf" target="_blank"><i>King v. Burwell</i>, 576 U.S. __ (2015)</a>
(p. 5). The Affordable Care Act (ACA) requires each state to create its
own health insurance Exchange, however, if a state refuses to do so,
then the Secretary of Health and Human Services (HHS) is authorized to
“establish and operate such Exchange within the State.” Sec.
18041(c)(1).” (p. 5). Only sixteen States and the District of Columbia
created their own Exchanges, while thirty-four States utilize the
federal Exchange administered by the Department of Health and Human
Services. (p. 6).</span></div>
<div class="entry-title">
<br /></div>
<div class="entry-title">
<span style="font-weight: normal;">The tax credits, which are authorized by IRC sec. 36B, are allowed to
“applicable taxpayers” who obtain health insurance through “an Exchange
established by the State under section 1311 of the Patient Protection
and Affordable Care act….” (p. 5). The IRS addressed the availability of
tax credits to individuals acquiring health insurance through an HHS
Exchange by adopting the definition of “Exchange” as used in an HHS
regulation, 45 CFR sec. 155.20, which provided that taxpayers are
eligible for a tax credit if they are enrolled in an Exchange which
serves the individual market, “regardless of whether the Exchange is
established and operated by a State… or by HHS….” (p. 6).</span></div>
<div class="entry-title">
<br /></div>
In prior proceedings, the U.S. District Court for the Eastern District of Virginia granted the Defendants’ Motion to Dismiss, <a href="http://www.leagle.com/decision/In%20FDCO%2020140220942.xml/KING%20v.%20SEBELIUS" target="_blank">997 F.Supp.2d 415 (2014)</a>, and the District Court judgment was affirmed by the U.S. Court of Appeals for the 4th Circuit, <a href="https://www.law.cornell.edu/supct/cert/14-114" target="_blank">759 F.3d 358 (2014)</a>.<br />
<br />
Justice Roberts, who was joined by Justices Kennedy, Ginsberg,
Breyer, Sotomayor, and Kagan, wrote the majority opinion, and held that
tax credits for health insurance under IRC sec. 36B applied to
individuals acquiring coverage on federal health insurance exchanges
under the Affordable Care Act (ACA), even though sec. 36B states that
the credits apply to insurance plans that are enrolled in through “an
Exchange established by the State under [42 U.S.C. sec. 18031].” Justice
Roberts’ reasoning was based on the ambiguity reflected in sec. 36B
when it was interpreted in connection with other provisions of the ACA,
and the manner in which those ambiguities were either consistent or
inconsistent with Congress’ intent that the ACA expand health care
coverage, and lower the cost of health insurance as a means of
facilitating that expansion of coverage. The Congressional intent to
expand health insurance coverage through the ACA would have been
undermined if the sec. 36B tax credits were not applicable to
individuals enrolled in health insurance plans through the federal
exchanges.<br />
<br />
Justice Roberts discussed the history of health reform in the United
States and how states which instituted guaranteed issue, which required
insurers to cover persons regardless of health status, and community
rating, which restricted insurers from taking health status into account
in setting premiums, ultimately led to “adverse selection,” which
occurred when a person would only seek insurance once they became sick
or in need of health care coverage. Because insurers were required to
cover persons regardless of health status and could not take health
status into account in setting premiums for specific insureds, they were
forced to raise rates for all insureds in order to account for the
higher health costs, increasing the cost of coverage and reducing the
numbers of individuals who could afford coverage. Justice Roberts wrote
that “This led to an economic “death spiral.” As premiums rose higher
and higher, and the number of people buying insurance sank lower and
lower, insurers began to leave the market entirely.” (p. 2).<br />
<br />
Congress, relying on the Massachusetts health reform effort in 2006,
included in the ACA a guaranteed issue and community rating component,
but also included an individual mandate requiring most individuals to
maintain health insurance coverage (either employer-provided, private
coverage, or government-subsidized coverage), or pay a penalty. For
individuals whose household income is between 100% and 400% of the
federal poverty level income amount, they are eligible for a tax credit
pursuant to IRC sec. 36B. The tax credit lowers the cost of health
insurance for working class and middle class taxpayers, while the
mandate brings into the health insurance pool more young and healthy
persons (who would otherwise not obtain coverage) whose premiums
subsidize the cost of coverage for sick and older persons under the ACA.
( p.4).<br />
<br />
Justice Roberts, in discussing Congress’ awareness of the necessity
of the individual mandate and the tax credit to the reform effort,
writes: “These three reforms are closely intertwined. As noted, Congress
found that the guaranteed issue and community rating requirements would
not work without the coverage requirement. Sec. 18091(2)(I). And the
coverage requirement would not work without the tax credits. “The reason
is that, without the tax credits, the cost of buying insurance would
exceed eight percent of income for a large number of individuals, which
would exempt them from the coverage requirement. Given the relationship
between these three reforms, the Act provided that they should take
effect on the same day—January 1, 2014….” (p. 5).<br />
<br />
Justice Roberts determined that due to the “economic and political
significance” of the tax credits and their central role in the statutory
scheme Congress created under the ACA, “It is especially unlikely that
Congress would have delegated” to the IRS the authority to resolve any
ambiguities with the tax credit under its regulatory authority without
expressly doing so. He concludes that it is the Court’s, and not the
IRS’s duty to determine the correct interpretation of sec. 36B. (p 8).<br />
<br />
Justice Roberts’ analysis first finds that the authority granted to
the Secretary of HHS to “establish and operate such Exchange within the
State,” pursuant to sec. 18041(c)(1) of the ACA, shows that the HHS
exchanges and the state Exchanges under sec. 18031 “are equivalent” by
virtue of HHS establishing “such Exchange” under 18041, or, that HHS is
to establish “the same Exchange that the State was directed to establish
under Section 18031.” (p. 9–10).<br />
<br />
Justice Roberts then analyzes sec. 36B in context with other
provisions of the ACA (sec. 18032 defining “qualified individual” and
sec. 300gg-91(d)(21) defining “Exchange”) and determines that a federal
Exchange may be considered as one “established by the State” in order
for the federal Exchange to function consistently with those other
provisions within the statutory scheme of the ACA, resulting in
ambiguity in the interpretation of sec. 36B within the context of the
ACA’s statutory scheme, as compared to a literal interpretation of
“established by the State” under sec. 36B. (p. 10–13).<br />
<br />
Applying the principle of statutory interpretation that “the words of
a statute must be read in their context with a view to their place in
the overall statutory scheme,” Justice Roberts concludes that a strict
interpretation of sec. 36B must be rejected because “it would
destabilize the individual insurance market in any State with a Federal
Exchange, and likely create the very ‘death spirals’ that Congress
designed the Act to avoid.” (p. 9, 15).<br />
<br />
Justice Roberts holds that the sec. 36B tax credits are allowed for
health insurance purchased on “any Exchange created under the Act.”<br />
<br />
Justice Scalia wrote the dissenting opinion and was joined by
Justices Thomas and Alito. Justice Scalia applies a literal
interpretation of sec. 36B and concludes that the tax credits only apply
to Exchanges established by the States, therefore, no tax credits are
allowed for health insurance purchased on a federal Exchange. (p. 2).<br />
<br />
In contrast to Justice Roberts’ broad-based ambiguity analysis, which
relies on his interpretation of sec. 36B in the context of the purpose
and design of the ACA and his conclusion that a literal interpretation
of the statute would conflict with the ACA’s design and purpose, Justice
Scalia focuses solely on the language of the statute itself in
determining whether there is any ambiguity, and finding no ambiguity in
the statutory language, concludes that there is no reason to consider
the ACA’s purpose and design for the purpose of interpreting sec. 36B.
(p. 13).<br />
<br />
Justice Scalia suggests that the design of the ACA was intended to
incentivize states to create and operate their own exchanges and that
limiting the 36B tax credits to health insurance plans purchased on a
state exchange was one means of encouraging states to create their own
exchanges. (p. 15-16). In light of that suggestion, he finds that
interpreting sec. 36B to allow tax credits for health insurance
purchased on a federal Exchange eliminates any need on the part of the
state to create its own Exchange since the tax credit will be available
on a federal Exchange. (p. 16).<br />
<br />
Justice Scalia also states that the majority, rather than
interpreting sec. 36B is actually rewriting the statute, which is a duty
belonging to Congress.<br />
<br />
Discussion<br />
<br />
This case, at its most basic level, is a statutory interpretation
dispute. The lower courts which decided this case came to the same
judgment as the Supreme Court, but each with slightly different
reasoning.<br />
<br />
Justice Roberts’ opinion applies a broad and policy-based analysis of
both the legislative intent and design of the ACA in order to determine
not only how the health insurance Exchanges were intended to operate,
but also as a means of determining which interpretation of sec. 36B was
most consistent with Congress’ purpose and design for the ACA.<br />
<br />
Justice Scalia applied a more limited analysis, focusing solely on
the statutory language of sec. 36B, and finding no ambiguity in the
statute itself, determined that there was no need to analyze the purpose
and the design of the ACA in interpreting the statutory language.<br />
<br />
Justice Scalia’s criticism that the Court is rewriting the statute,
not interpreting it, is very interesting. I think that your conclusion
as to whether the Court is interpreting sec. 36B, or rewriting it,
depends upon whether you agree with Justice Roberts’ or Justice Scalia’s
approach in determining and analyzing statutory ambiguity. In light of
the complex design and interlocking provisions of the ACA, and the need
to analyze sec. 36B in the context of those aspects of the law in order
to fully comprehend how it fit within the statutory scheme, Justice
Roberts, as well as the lower courts, decided the case correctly.<br />
<br />
<a href="https://www.nesl.edu/faculty/full_time.cfm?facid=22" target="_blank">Wilton B. Hyman</a> Webmasterhttp://www.blogger.com/profile/05506162355597607649noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-17151487432568628692015-07-24T14:17:00.001-04:002015-12-04T12:12:33.390-05:00Recent Supreme Court Term: Obergefell v. Hodges: Equality and Constitutional Interpretation<br />
On June 26 the U.S. Supreme Court decided the “same-sex marriage” case <a href="http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf" target="_blank"><i>Obergefell v. Hodges</i></a>.
The Court held unconstitutional, by a 5-4 vote, state laws that limit
marriage to heterosexual couples. According to the Court, these limits
violate both the Due Process and Equal Protection clauses of the 14th
Amendment.<br />
<br />
Justice Kennedy’s opinion for the Court focuses on the crucial role
that marriage, as a component of the liberty protected by the Due
Process clause, plays both in individuals’ lives and in structuring
society. Denying same sex-couples the opportunity to marry not only
affects what type of society we live in, but also impoverishes the lives
of a particular group of people in society. According to the Court,
individuals define themselves through marriage. In addition, through
marriage they access other “freedoms, such as expression, intimacy, and
spirituality.” (p. 13) Marriage is also a means for individuals to
achieve the “highest ideals of love, fidelity, devotion, sacrifice, and
family.” (p. 28) Furthermore, children in same-sex families are injured
by having to endure the stigma of familial inferiority as a result of
the non-recognition of their parents’ marriages. (p. 15)<br />
<br />
Each of the four dissents objects to the majority’s conclusion that
there is a violation of the Due Process clause. The dissenting justices
argue that Justice Kennedy’s reasons for finding that same-sex couples
have a protected fundamental right to marry are matters of policy and
that the state legislatures, not the U.S. Supreme Court, should decide
what policies are best for the people and society overall. The Chief
Justice’s dissent, for example, does not deny that there is a
fundamental right to marry; instead the Chief Justice argues that this
fundamental right applies only to heterosexual couples because “the core
definition of marriage … [is]the union of a man and a woman.” (pp. 8
and 16.) This “core” meaning of the fundamental right of marriage is
“deeply rooted in this Nation’s history and tradition.” Constraints on
the definition of constitutionally protected rights keep the courts from
legislating.<br />
<br />
The majority and the dissents all recognize that the terms “liberty”
and “marriage” must be interpreted. Unconstrained interpretation is
problematic because it is difficult to distinguish from the act of
legislating. Nonetheless, courts must interpret the words of a text,
including a constitution. To be legitimate within our system, judicial
interpretations must be bounded by an accepted and acceptable structure.
The Court and the dissents disagree on what this structure is.<br />
<br />
The Chief Justice’s dissent searches for a “core” meaning of marriage
as a means of avoiding excessive interpretation. However, as the
Court notes, the institution of marriage has changed dramatically over
time. Different “core” meanings can be identified at different moments
in time, space, and society. As Justice Kennedy wrote in his opinion
for the Court, the doctrine of coverture was critical to the meaning of
marriage in the early 19th century. At the time, a married woman’s
husband could have determined where she would live, whether she could
enter any particular contract, and how to employ any assets she may have
owned upon marriage. He could also decide whether to force sexual
relations on her and under what circumstances to discipline her
physically or otherwise. In short, the central feature of her marriage
might have been her subordination to her husband, not the fact that he
was sexually male. The Chief Justice’s definition of marriage as based
on heterosexuality is a choice among many central definitions of
marriage.<br />
<br />
The Court’s definition of marriage relies on a different set of
concepts to constrain its interpretation: individual autonomy, intimacy
and expression; the fundamental role that marriage plays in promoting
child development and in structuring society; and the importance of
equality as also articulated in the 14th Amendment. <br />
<br />
For many decades, equality has had a critical function in identifying
the proper role for courts in interpreting the constitutionality of
majoritarian legislation. In our democratic system the courts protect
minorities from oppression by the majority. (p. 24) <a href="https://supreme.justia.com/cases/federal/us/304/144/case.html" target="_blank"><i>See United States v. Carolene Products Co.</i>, 304 U.S. 144, 152 n.4 (1938)</a>
As the Court’s opinion notes, the ideas behind the Equal Protection
clause reinforce the liberties protected by Due Process; restricting
marriage to heterosexuals would have the effect of “diminish[ing] the
personhood” of members of same-sex couples. (p. 19) Similarly, in <a href="http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf" target="_blank"><i>U.S. v. Windsor</i></a>,
the Court highlighted the humiliation and financial harm to children in
same-sex families when their parents’ marriages are not recognized by
the federal government. This role of protecting minorities against harm
done by the majority has been central to the role of the Court.<br />
<br />
Since they cannot avoid interpretation, courts must identify the principles to guide their interpretations. In <i>Obergefell</i>,
the Court chose protection of the members of a minority group against
the demeaning life the legislative majority would have allowed them, a
life determined by 19th century understandings of marriage. <br />
<br />
The process of identifying the parameters for constitutional
interpretation is one of the most important functions of courts and
lawyers. The fact that it is subject to vigorous debate and is likely
to continue to be so is healthy for our democracy.<br />
<br />
<a href="https://www.nesl.edu/faculty/full_time.cfm?facID=17">Judith G. Greenberg</a> <br />
<b>
</b>Webmasterhttp://www.blogger.com/profile/05506162355597607649noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-32861202135492828252015-07-24T14:12:00.001-04:002015-07-24T14:19:42.844-04:00Recent Supreme Court Term: Zivotofsky v. Kerry<br />
<a href="http://professors.nesl.edu/2015/07/recent-supreme-court-term-los-angeles-v.html" target="">In a recent blog</a> my colleague <a href="https://www.nesl.edu/faculty/full_time.cfm?facid=15" target="_blank">Lawrence Friedman</a>
noted, “many cases implicating the Constitution do not turn on the
document’s text.” He was writing in the context of Fourth Amendment
jurisprudence, but his observation is equally if not even more true in
the context of foreign affairs and separation of powers. This is an
area where the Court does not frequently tread for many reasons, not the
least of which is that the Court is not keen to involve itself in what
is usually seen as a turf battle between the two political branches.<br />
<br />
Nonetheless, this past term the Court did take up a seemingly mundane
case that has potentially significant consequences in the foreign
affairs and national security arenas, areas where the Framers purposely
created vague lines of authority between the President and Congress. <i>Zivotofsky v. Kerry</i>
involved the petition of the Zivotofskys to have the birth of their
child listed on his U.S. passport and consular report as “Jerusalem,
Israel.” However, since 1948, when President Truman recognized Israel,
he and every subsequent U.S. president have never acknowledged any
country’s sovereignty over Jerusalem. Further, the Secretary of State
has instructed State Department employees to record the place of birth
for U.S. citizens born in Jerusalem as “Jerusalem,” with no further
state affiliation.<br />
<br />
Enter Congress, which in 2002 passed Section 214 of the Foreign
Relations Authorization Act titled “United States Policy with Respect to
Jerusalem as the Capital of Israel.” As this title suggests, Section
214 directed the Secretary of State to register the place of birth as
Israel on registration of birth documents, certification of nationality,
and passports for any U.S. citizen born in Jerusalem upon the request
of the citizen or the citizen’s legal guardian. Section 214 was clearly
intended to countermand the directives of the executive with respect to
citizens born in Jerusalem.<br />
<br />
The Court framed the clear conflict between the President and
Congress in broad terms: 1. Whether the President has the exclusive
power to grant formal recognition to a foreign sovereign? 2. If he has
that power, can Congress command the President and his Secretary of
State to issue a formal statement that contradicts the earlier
recognition? In an opinion by Justice Kennedy the Court answered yes to
the first question and no to the second.<br />
<br />
The Court began its analysis by referring to Justice Jackson’s taxonomy in <a href="https://supreme.justia.com/cases/federal/us/343/579/case.html" target="_blank"><i>Youngstown Sheet and Tube Co. v. Sawyer</i></a>,
noting that this is a case where the President’s power is at its
“lowest ebb” because he is acting in direct contravention of Congress,
and thus he can rely solely on the powers the Constitution grants to him
alone. However, the Constitution is silent as to whether or which
branch has exclusive authority to recognize another sovereign. In fact,
the Constitution does not mention the term “recognition” at all.<br />
<br />
Unable to rely on the text, Justice Kennedy opts for a structural
and, ultimately, a pragmatic approach to answer these questions. He
notes that the Reception Clause in Article II directs the President to
receive ambassadors and other public ministers. According to Justice
Kennedy, that sounds a lot like recognition authority. Justice Kennedy
goes on to list a number of other foreign affairs powers the
Constitution vests in the President, such as making treaties and
appointing ambassadors and other public ministers. Even though these
treaty-making and appointments powers require senatorial consent, it is
enough for Justice Kennedy that each is dependent on Presidential power.
It is the President who must initiate the process. From this arguably
thin reed, Justice Kennedy concludes that the President has the power
to grant formal recognition to a foreign sovereign. <br />
<br />
Justice Kennedy’s pragmatism is in full view as he goes on to address
the second question, whether Congress can command the President and his
Secretary of State to contradict his earlier recognition. Here the
Court answers no; the President’s power is exclusive. This, according
to the Court, is for the simple and obvious reason that the Nation must
speak with one voice on the matter of recognizing a foreign sovereign.
If the President is to be effective in negotiations over a formal
recognition determination, it must be evident that he speaks for the
Nation.<br />
<br />
The conservative wing of the Court dissented in <i>Zivotofsky</i>.
In the most scathing criticism, Justice Scalia questions whether the
President’s recognition power is exclusive, but more to the point, he
contends Section 214 has nothing to do with recognition of foreign
sovereigns. Section 214, Justice Scalia argues, performs the much more
prosaic function of allowing citizens some say in what their Government
says about another country’s boarders in citizenship documents. Because
citizenship documents are matters within Congress’s control, Congress
has the authority to direct what those documents say.<br />
<br />
It remains to be seen if this case will have longer-term impacts
beyond its rather narrow facts. However, because the Court does not
wade into this area very often, it is likely that courts, advocates, and
commentators will turn to this case in support of various arguments
over presidential and congressional authority. Some particular points
of note are that that in this case the President argued for a much
broader grant of authority. Citing to the 1936 case <a href="https://supreme.justia.com/cases/federal/us/299/304/" target="_blank"><i>United States v. Curtiss-Wright</i></a>,
the Secretary of State contended that the President has exclusive
authority to conduct diplomatic relations along with the “bulk of
foreign-affairs powers.” The Court declined to read <i>Curtiss-Wright</i>
so broadly, suggesting that too oft-cited language from that case that
the President is the “sole organ of the federal government in the field
of international affairs” is dicta.<br />
<br />
Also interesting is that a majority of the Court did find express and
exclusive executive power absent any clear language in the
Constitution. The means by which the Court found this power in the
constitutional structure and the Court’s pragmatic view of how a
government must function is likely to provide a road-map for future
foreign affairs and national security cases where the demarcation
between the President’s and Congress’s power is vague.<br />
<br />
Finally, in reaching its decision the Court noted that the President
needs exclusive recognition power in order to be effective. If the
Court believes that effectiveness is the touchstone of exclusive
executive authority granted by the Constitution, than <i>Zivotofsky</i>
is truly a blockbuster case and one that the executive will cite for
generations to come in order to maximize its authority. I suspect that
the Court will be forced to clarify and perhaps narrow this rationale in
some future case, but time will tell.<br />
<br />
<a href="http://www.nesl.edu/faculty/full_time.cfm?facid=19" target="_blank">Victor M. Hansen </a>Webmasterhttp://www.blogger.com/profile/05506162355597607649noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-22615738347058719152015-07-24T14:05:00.000-04:002015-07-24T14:07:30.333-04:00Recent Supreme Court Term: Los Angeles v. Patel<br />
Students in constitutional law come to learn what seasoned constitutional lawyers know: many cases implicating the Constitution do not turn on the document’s text. Which is not to say the text isn’t important, just that, in certain areas of constitutional law, the doctrinal tests the court has devised to implement textual commands often take precedence over the words themselves. Consider the Fourth Amendment, as demonstrated by the recent decision in <i><a href="http://www.supremecourt.gov/opinions/14pdf/13-1175_2qe4.pdf" target="_blank">Los Angeles v. Patel</a></i>, involving the scope of protection afforded business records. <br />
<br />
The case concerned a challenge to a Los Angeles ordinance that compelled hotel operators to keep records containing specified information provided by guests, and to make these records available to police officers “for inspection” on demand. The law made the failure to make the records available for inspection punishable by up to six months in jail and a $1,000 fine. <br />
<br />
Writing for the majority, Justice Sotomayor concluded the law was unconstitutional under the Court’s Fourth Amendment jurisprudence. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and states that “no Warrants shall issue, but upon probable cause.” The Court has long interpreted this provision to mean that, absent a warrant based upon probable cause as determined by a neutral decisionmaker, a search will be deemed unreasonable. There is an exception to this rule for administrative searches, such as those contemplated by the Los Angeles law. <br />
<br />
For an administrative search to be constitutional, Sotomayor explained, “the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” Absent this opportunity, searches under the ordinance potentially could exceed statutory limits or become tools for harassment. An opportunity to obtain such review is a minimal protection—there would be no need for probable cause to search—and, Sotomayor concluded, could be provided without “imposing onerous burdens on those charged with an administrative scheme’s enforcement.” She also noted that searches authorized by the Los Angeles law did not fall within the narrow category that involve closely regulated businesses, in which the government need not afford any opportunity to object to the search. <br />
<br />
In dissent, Justice Scalia would have none of it. He argued that “[t]he Court reaches its wrongheaded conclusion not simply by misapplying … precedent, but by mistaking … precedent for the Fourth Amendment itself.” The only constitutional question, in his view, was “whether the challenged search [was] reasonable.” He concluded, “the limited warrantless searches authorized by Los Angeles’s ordinance [were] reasonable under the circumstances” because, in large part, hotels are “closely regulated businesses.” <br />
<br />
Scalia’s approach to the Fourth Amendment begs a question: what does it mean for a search to be constitutionally reasonable? <br />
<br />
The constitutional text, of course, does not define reasonableness. And so—as noted above—the Court has held a search as reasonable if it is supported by a warrant based upon probable cause. This is the default rule. <br />
<br />
But this is not the only way to implement the reasonableness requirement. Professor <a href="http://law.olemiss.edu/faculty-directory/thomas-k-clancy/" target="_blank">Tom Clancy</a> has concluded that the Framers likely understood “reasonableness” to require government agents to have a reason to search a particular person or place. (See The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. MEMPHIS. L. REV. 483 (1995)). This is in contrast to the regime authorized under the Los Angeles ordinance, which permitted law enforcement to search hotel records arbitrarily—and, as the Court noted, as “a pretext to harass business owners.” <br />
<br />
We should prefer an approach to reasonableness that will not work to diminish the scope of the Fourth Amendment’s commitment to privacy. An understanding that search regimes need only be reasonable, in a rational-basis way—as suggested in Scalia’s dissenting opinion—eventually will undermine that commitment. For the scope of this kind of reasonableness could be quite elastic—if arbitrary records searches are reasonable in the context of hotels, why not in the context of any business where members of the public may congregate? Or any business, like hotels, that is subject to generally applicable regulations? <br />
<br />
At bottom, there is an important difference between viewing a rule as essentially reasonable simply because it serves a legitimate government interest—in Patel, deterring criminals from operating on hotel premises—and viewing it as essentially unreasonable because, regardless of its salutary purpose, it allows police to search indiscriminately. Judges are understandably reluctant to critically review legislative rules under the former approach, while the latter gives them an objective and consistent basis upon which to ensure that the constitutional protection of privacy is not diminished to a point of irrelevance. <br />
<br />
Regulation of hotels is important and the deterrence of criminal activity arguably more so. Under the Fourth Amendment, courts should not allow privacy interests—including those of businesses—to be sacrificed in an effort to achieve either.<br />
<br />
<a href="http://www.nesl.edu/faculty/full_time.cfm?facid=15" target="_blank">Lawrence Friedman </a>Webmasterhttp://www.blogger.com/profile/05506162355597607649noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-62514428507655747732015-05-05T14:40:00.001-04:002015-12-04T15:27:12.047-05:00Why You Should be Interested in Trusts and Estates LawSuppose that S, scion of a prominent wealthy family but a bit of a ne’er do well, drunkenly and negligently wrecks his car, causing severe injury to innocent victim, V. V sues and wins a judgment against S, who is the beneficiary of a trust worth millions of dollars. Is V likely to collect on this judgment?<br />
<br />
Not against the trust. Although S continues to benefit from the trust, the document that created it contains a “spendthrift clause.” Under the widely adopted <a href="http://www.uniformlaws.org/shared/docs/trust_code/utc_final_rev2010.pdf#page=94" target="_blank">Uniform Trust Code (UTC),</a> a few simple words in the trust document numinously protect its corpus from claims of almost all third parties, including tort victims.<br />
<br />
Should you be interested in trusts and estates law? Recently, two prominent economists weighed in on a similar query with regard to economics. Ha-Joon Chang’s 2014 book, <a href="http://www.amazon.com/Economics-Users-Guide-Ha-Joon-Chang/dp/1620408120" target="_blank"><i>Economics: The User’s Guide,</i></a> encouraged his readers to develop some facility with economic questions, the answers to most of which depend on the application of moral values and political views. His point was that when non-economists fail to engage economic questions, we get solutions skewed to the political biases of a handful of economists.<br />
<br />
Likewise, <a href="http://www.hup.harvard.edu/catalog.php?isbn=9780674430006" target="_blank">French economist Thomas Piketty warned</a> that “the distribution of wealth is too important an issue to be left to economists, sociologists, historians, and philosophers.” Instead, he urged, everyone should be interested and involved. Piketty reported that inherited wealth accounted for at least 50–60% of total private capital in the United States in the late twentieth century and accounts for a much larger share today.<br />
<br />
As in economics, moral and political values decide many questions about our laws governing inheritance. And if inheritance stands to play an increasing role in who gets what, as Piketty claims it will, questions of inheritance are crucial in determining how our resources are allocated.<br />
<br />
<a href="http://en.wikiquote.org/wiki/Upton_Sinclair" target="_blank">Upton Sinclair wrote</a> that it’s “difficult to get a man to understand something, when his salary depends on his not understanding it.” Contemporary psychological studies confirm that what is now called “motivated reasoning” pervades our decision-making process. Rare is the person who adopts a political perspective or moral view that runs counter to his or her own livelihood. Trusts and estates lawyers make their living helping families hold onto their wealth across generations, meaning they are likely to be biased on questions regarding inheritance. Their vested interest runs towards ensuring entrenchment, rather than disbursement, of wealth. And they have outsized influence on the substance of inheritance law because they are motivated to give it their attention.<br />
<br />
Let’s revisit S, the wealthy young man who negligently injured V. After V wins her judgment, Lawyer L defends S’s trust interest against V’s attempt to levy against it, but remains unpaid after billing S many times for his legal work. Fed up, L goes to court and gets a judgment against S for his fees. Is L likely to collect against the assets of the trust? Yes, because while the UTC shields the assets of the trust from almost all creditors’ claims, making it impenetrable by V, it opens the door to “a judgment creditor who has provided services for the protection of a beneficiary’s interest in the trust.” Meanwhile, V remains uncompensated for her injuries.<br />
<br />
<a href="http://www.nesl.edu/faculty/full_time.cfm?facID=34" target="_blank">Kent Schenkel</a>Webmasterhttp://www.blogger.com/profile/05506162355597607649noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-58031882166561901762015-04-22T10:52:00.002-04:002015-12-04T15:26:01.088-05:00Creeping Doctrines / Shifting Fees<br />
Too often the catch-all term “intellectual property”— useful in describing practitioner specialty areas, law school courses, and text books, among other things— serves a subtly insidious function. It suggests that those discrete bodies of law which it encompasses—roughly, copyright, trademark, patent, and trade secret law—have fundamental commonality. Not only, it implies, do those legal areas overlap, but more critically that those overlaps somehow count for more than any divergences.<br />
<br />
This has a real effect on the development of the law. Courts are quick to presume that a rule applicable to one area of intellectual property ought to apply to all. The burden, it seems, is on one challenging such an extension to show why a given area of law, say trademark law, is distinct enough from another, such as patent law, so that a rule for one should not apply to another. The courts, for instance, over the past decade worked to extend a rule from a 2006 patent case that denies prevailing patent infringement plaintiffs entitlement to injunctive relief (<i><a href="http://www.supremecourt.gov/opinions/05pdf/05-130.pdf" target="_blank">eBay Inc v. MercExchange</a></i>) to copyright and trademark law. We are now seeing that process inexorably repeat itself with respect to statutory fee-shifting.<br />
<br />
To be sure, there is a clear, natural and forceful argument as to why the fee-shifting rules for patent law ought to be the same as those in trademark law. To start with, federal trademark law’s Lanham Act and the U.S. Patent Act contain <a href="http://www.bitlaw.com/source/15usc/1117.html" target="_blank">identical statutory fee-shifting language.</a> Namely, “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” When the Lanham Act was amended in the 1970s to add this provision, moreover, the Senate committee proposing the change made clear that it was intending to make trademark law more like patent law (which had operated under such language since the 1950s).<br />
<br />
This apparently deliberate act of statutory duplication has led two appellate courts recently to conclude, with relative ease, that the two provisions should be interpreted in the same way. More specifically, both suggested (one in a holding last fall and one in dicta a little over two weeks ago) that the U.S. Supreme Court’s recent clarification of the meaning of the statutory language in the Patent Act in <i>Octane Fitness, LLC v. INCO Health & Fitness, Inc.</i>, ought to apply with equal force to the Lanham Act. See, respectively, <i><a href="http://www2.ca3.uscourts.gov/opinarch/133305p.pdf" target="_blank">Fair Wind Sailing, Inc. v. Dempster</a></i> and <i>Slep-Tone Entertainment Corp. v. Karaoke Kandy Store, Inc.</i> The Supreme Court itself appeared to telegraph the propriety of such as result when it cited, in its <i>Octane </i>opinion, a trademark case and noted the “identical” nature of the two provisions.<br />
<br />
The issue, though, is hardly as straightforward as these courts make it seem. There remain strong contrary arguments against conflating the two standards. Although it is of course a rule of statutory interpretation that similar language should be construed in a similar way, “pari passu,” that rule is <a href="http://openjurist.org/412/us/427/northcross-v-board-of-education-of-memphis-city-schools" target="_blank">usually coupled with the limitation that it applies to statutes enacted “for the same purpose.” </a>The primary purposes of the Lanham Act are to make consumer purchasing decisions easier and safer by insuring the integrity of brand information in the marketplace and to protect brand good-will from misappropriation (i.e., to protect consumers and brands). The primary purpose of the Patent Act, by stark contrast, is to encourage the creation and disclosure of new inventions by granting exclusive rights for limited times to inventors (i.e., to incentivize innovative activity). As a direct consequence of these differing purposes, for well over a century <a href="https://supreme.justia.com/cases/federal/us/100/82/case.html" target="_blank">the U.S. Supreme Court has held </a>that the foundational Patent and Copyright Clause of the U.S. Constitution, Article I, Section 8, Clause 8, does not apply to trademark law. <br />
<br />
Second, <i>Octane </i>was decided in an atmosphere steeped in the purported problem of patent trolls—those much-maligned entities alleged to assert frivolous patent claims without actually making or selling patented products, while often engaging in litigation misconduct. In rejecting the stingy objective baselessness and frivolity standards previously used by the Federal Circuit for awarding attorney’s fees, the <i>Octane </i>decision opened the door to more opportunities for prevailing defendants to receive attorney’s fees. This should, in the words of <i>Octane</i>, deter a patent plaintiff from bringing a borderline case that “stands out from others with respect to the substantive strength of a party’s litigating position” or litigating them in an “unreasonable manner.” <i>Octane </i>itself, for instance, was a case where a prevailing defendant claimed a right to attorney’s fees against a losing patent-owning plaintiff that had asserted a weak patent infringement claim.<br />
<br />
Trademark law, though, has had nothing close to the “troll” problems faced by patent or even copyright law because it contains built-in checks against trolling. A trademark infringement plaintiff must actually use its trademark to have rights in it, and must show a likelihood of confusion in a real marketplace to prevail on its claim.<br />
<br />
Consistent with this view, the (remarkably terse) legislative history of the fee-shifting amendments to the Lanham Act makes clear that they were designed firstly to aid prevailing plaintiffs seeking attorney’s fees against counterfeiting defendants. In fact, the Senate Report contains a definition of “exceptional cases” that defines the term using language only relevant to losing defendants (“i.e., in infringement cases where the acts of infringement can be characterized as ‘malicious,’ ‘fraudulent,’ ‘deliberate,’ or ‘willful.’”). Although the statutory language clearly applies to prevailing parties of either stripe, this legislative emphasis on preventing counterfeiting by trademark defendants at a minimum counsels against knee-jerk extensions of a rule designed to reign in patent plaintiffs.<br />
<br />
All of this is not meant to suggest that there aren’t good reasons for applying the <i>Octane </i>standard to trademark cases. Some might even suggest that general civil litigation in the U.S. would benefit from giving district courts more discretion to award attorney’s fees to all prevailing parties. But it does counsel against an all-to-easy rush to superimpose patent or copyright law rules onto trademark law. All three may be forms of “intellectual property,” but hopefully courts considering the issue (such as the United States District Court for the Northern District of Ohio as it picks up the <i>Slep-Tone</i> case on remand) will not make the mistake of presuming that what is good law for one must be so for the others.<br />
<br />
<a href="http://www.nesl.edu/faculty/full_time.cfm?facid=355">Peter Karol </a><br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />Webmasterhttp://www.blogger.com/profile/05506162355597607649noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-77601865427544011072015-04-21T09:44:00.001-04:002015-12-04T15:26:40.048-05:00Memory Battles and National Human Rights TrialsThis post originally appeared on the IntLawGrrls blog, available <a href="http://ilg2.org/2015/04/10/6890/" target="_blank">here</a>.<br />
<br />
I teach transitional justice at New England Law | Boston, and this past week I began the unit on national human rights trials. This topic is one of my favorites due largely to my experience observing national human rights trials like that of former <a href="http://fujimoriontrial.org/" target="_blank">Peruvian President Alberto Fujimori</a> and former Guatemalan leader <a href="http://ilg2.org/2013/04/25/delayed-justice-in-guatemala/" target="_blank">José Efraín Ríos Montt</a>. Fujimori is currently serving a twenty-five year sentence in Peru for his role in serious human rights crimes during the 1990s while president; while Ríos Montt has been under house arrest awaiting the resumption of his trial since 2013, when the Guatemalan Constitutional Court pointed to <a href="http://www.ijmonitor.org/category/efrain-rios-montt-and-mauricio-rodriguez-sanchez/" target="_blank">procedural errors</a> as a reason to annul his conviction for crimes against humanity and genocide for his role in massacres of indigenous communities in 1982–83.<br />
<br />
While observing both trials, I was fascinated by the media coverage of these proceedings and how the <a href="http://scholarship.law.marquette.edu/mulr/vol93/iss1/16/" target="_blank">local coverage of these historical trials impacted public debates</a> outside of the courtroom. My own research and writing on this topic seeks to respond to the fact that, generally speaking, we often <a href="https://www.ictj.org/debate/article/media-and-transitional-justice-complex-understudied-relationship" target="_blank">forget the important role of media</a> in transmitting the content of human rights trials although it can dramatically influence the overall transitional justice process.<br />
<br />
In my recent article, “Memory Battles: Guatemala’s Public Debates and the Genocide Trial of José Efraín Ríos Montt,” I conducted a systematic evaluation of news reports and opinion pieces from local news outlets to study the nuances of Guatemala’s debate over whether or not the country had suffered a genocide. What I discovered was a “memory battle” about interpretations of the past war. Based on these findings, I challenge the idea that transitional justice mechanisms will naturally lead to a collective memory that results in a widespread societal condemnation of human rights violations. Instead, I draw from the field of memory studies to debunk the assumption that there is a smooth path towards a national narrative about atrocity. Different societal actors accompany the transitional justice process, actively and purposefully seeking to use judicial and non-judicial justice mechanisms to construct public memories that fit within their own interpretations and political agendas resulting in many contested versions of the past.<br />
<br />
This situation presents a paradox for transitional justice advocates: on the one hand, tolerating expression of different interpretations and opinions of the past promotes the ideals of democracy. However, when versions of the past justify or explain away atrocity, they challenge the political project of building a culture of rights and the rule of law. I decided to examine how this paradox plays out when a transitional justice project includes national criminal trials given that most scholarship focuses more directly on the relationship between truth commissions and memory. I found that, up until now, scholars often wrote about memory and trials based on theoretical speculations as opposed to empirical research. This narrow focus can best be explained by the fact that transitional justice evolved as a response to the inability or unwillingness to conduct criminal trials, a trend that has begun to change only in the last decade with a rise in national human rights trials especially in Latin America.<br />
<br />
I conclude my article by arguing that a country’s long-term interpretation of its past, and its agenda for the future, depends on which camp of memory-makers in a transitional justice setting wins this memory battle. It is my position that a collective memory is the first step towards cultivating its collective consciousness, which leads to a conscience that can influence how its members buy into this culture of rights, accountability, equality, and other essential attributes to sustainable peace. Importantly, it is often the nature of the memory making process itself, as opposed to a final memory product that predicts the outcome of memory surrounding national human rights trials.<br />
<br />
Based on my close study of the media and memory-making in transitional justice settings, I strongly recommend that any new transitional justice project should consciously contemplate the role of memory production in its design and implementation.<br />
<br />
<a href="https://www.nesl.edu/faculty/full_time.cfm?facid=386">Lisa J. Laplante</a>Webmasterhttp://www.blogger.com/profile/05506162355597607649noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-36344419645985357102015-04-02T14:52:00.001-04:002015-12-04T15:11:26.737-05:00Texas v. United StatesJudicial opinions are written to persuade. Perhaps this is the reason why Judge Hanen’s opinion in <a href="http://www.documentcloud.org/documents/1668197-hanen-opinion.html" target="_blank"><i>Texas v. United States</i></a> resorts to truncated arguments, neglecting to discuss the opposing position. Furthermore, nowhere in the opinion does the judge indicate the devastating effect that the opinion will have on the people involved. Instead of focusing on the families that are at risk of being ripped apart through deportation as a result of his decision, Judge Hanen portrays the battle as an abstract political one between states that “bear the brunt of illegal immigration” while the (incompetent?) “powers that be” in the capitol are “rubberstamp[ing]” applications to avoid deportation or giving them only a “pro forma review.” No matter how long an opinion is—and this one is more than 120 pages long—it will sound polemical instead of persuasive if it does not recognize the other side’s arguments.<br />
<br />
Among other things, Judge Hanen’s opinion holds illegal the decision by Jeh Johnson, Secretary of the Department of Homeland Security, to limit removal actions against some parents of citizens and permanent residents. The United States had claimed that this decision was not subject to judicial review under the federal Administrative Procedure Act on the grounds that it was a discretionary prosecutorial decision. Judge Hanen disagreed, holding that it was reviewable because, among other things, the statute used the term “shall” in relation to deportation instead of “may.” The judge’s handling of this one small point—the interpretation of “shall” in the statute—is illustrative of his failure to voice the United States’ argument in any but the weakest way. Similarly, his reluctance, in discussing this point, to recognize what is at stake for the families involved may show his fear that doing so would make the reader less sympathetic to his position.<br />
<br />
This is certainly not the first time that a court has had to interpret a statutory instruction expressed through the word “shall.” The United States Supreme Court took up the issue in <i>Town of Castle Rock v. Gonzales</i>, holding that the statute there, which said that the local police department “shall arrest” those who violated domestic violence restraining orders, gave the local police discretion as to whether to arrest or not. Judge Hanen’s failure to deal with this case or with similar cases shows his effort to persuade through blunt assertion instead of through legal analysis.<br />
<br />
Justice Scalia, writing for the Court in <i>Castle Rock</i>, denied that a mandatory arrest statute requires the police to make arrests for domestic violence restraining order violations. Instead, he said, “We do not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory.” (Emphasis in the original). He followed this with a lengthy discussion showing that police discretion to arrest has long “coexisted” with statutory mandatory arrest language. He also questioned how mandatory arrest would work in a setting, like plaintiff Gonzales’s, in which the person violating the restraining order is not present. Scalia’s point is that the statute cannot mean what it says because it would not be workable in that form. Furthermore, he engaged directly with the dissenting Justices’ position that other states have found mandatory arrest statutes in the context of domestic violence to be “more mandatory” than in other contexts.<br />
<br />
In contrast, Judge Hanen in <i>Texas v. United States</i> paid only very quick lip service to the fact that some interpret “shall” as “may” before concluding that “shall” in the applicable statute is “imperative” and deprives the Department of the “right to do something that is clearly contrary to Congress’ intent.” There is no mention of Castle Rock or of any other similar case, except for one low-level Board of Immigration Appeals (BIA) decision. The implication is that this position is not worth considering. This is confusing since immediately prior to this conclusion, he wrote that “DHS does have the discretion . . . to determine how it will effectuate its statutory duty and use its resources where they will do the most to achieve the goals expressed by Congress.” Given this, one would have thought the interpretation of “shall” would be a more complicated problem for him. What comes through to the reader from Judge Hanen’s very brief analysis is that he is upset that the government has announced that it will not enforce the removal laws against “a class of millions of individuals” despite the unmentioned fact that it is continuing to enforce them—at what many consider to be the highest rate ever—against others.<br />
<br />
Similarly, Justice Scalia in his opinion in <i>Castle Rock</i> recognized the powerful effect that his reading of the statute would have on powerless members of our society. It took him several paragraphs to recount the story of the abduction and murder of Gonzales’s children by her ex-husband who violated a restraining order; Scalia also detailed the police’s delaying tactics and refusal to do anything about the violation. This opinion, too, is written to persuade, but the sympathetic portrayal of the harm done by the failure to arrest helps to convince the reader that Scalia was aware of the horrific pain inflicted. In contrast, the reader of Texas v. United States does not have any reason to believe that Judge Hanen understood the devastating pain that could be inflicted by tearing families apart. His lack of empathy for the victims of his approach makes the opinion sound even more one-sided than it might otherwise.<br />
<br />
It is this anxiety to persuade through a one-sided approach and the unwillingness to admit to the harm done by the decision’s result that hopefully will be remedied on appeal, regardless of the ultimate outcome.<br />
<br />
Judith G. GreenbergWebmasterhttp://www.blogger.com/profile/05506162355597607649noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-74805019327490703862014-07-20T14:15:00.000-04:002014-07-20T14:15:38.865-04:00In Memoriam: Dan Markel (1972-2014)<!--[if gte mso 9]><xml>
<w:WordDocument>
<w:View>Normal</w:View>
<w:Zoom>0</w:Zoom>
<w:TrackMoves/>
<w:TrackFormatting/>
<w:PunctuationKerning/>
<w:ValidateAgainstSchemas/>
<w:SaveIfXMLInvalid>false</w:SaveIfXMLInvalid>
<w:IgnoreMixedContent>false</w:IgnoreMixedContent>
<w:AlwaysShowPlaceholderText>false</w:AlwaysShowPlaceholderText>
<w:DoNotPromoteQF/>
<w:LidThemeOther>EN-US</w:LidThemeOther>
<w:LidThemeAsian>X-NONE</w:LidThemeAsian>
<w:LidThemeComplexScript>X-NONE</w:LidThemeComplexScript>
<w:Compatibility>
<w:BreakWrappedTables/>
<w:SnapToGridInCell/>
<w:WrapTextWithPunct/>
<w:UseAsianBreakRules/>
<w:DontGrowAutofit/>
<w:SplitPgBreakAndParaMark/>
<w:DontVertAlignCellWithSp/>
<w:DontBreakConstrainedForcedTables/>
<w:DontVertAlignInTxbx/>
<w:Word11KerningPairs/>
<w:CachedColBalance/>
</w:Compatibility>
<m:mathPr>
<m:mathFont m:val="Cambria Math"/>
<m:brkBin m:val="before"/>
<m:brkBinSub m:val="--"/>
<m:smallFrac m:val="off"/>
<m:dispDef/>
<m:lMargin m:val="0"/>
<m:rMargin m:val="0"/>
<m:defJc m:val="centerGroup"/>
<m:wrapIndent m:val="1440"/>
<m:intLim m:val="subSup"/>
<m:naryLim m:val="undOvr"/>
</m:mathPr></w:WordDocument>
</xml><![endif]--><br />
<!--[if gte mso 9]><xml>
<w:LatentStyles DefLockedState="false" DefUnhideWhenUsed="true"
DefSemiHidden="true" DefQFormat="false" DefPriority="99"
LatentStyleCount="267">
<w:LsdException Locked="false" Priority="0" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Normal"/>
<w:LsdException Locked="false" Priority="9" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="heading 1"/>
<w:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 2"/>
<w:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 3"/>
<w:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 4"/>
<w:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 5"/>
<w:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 6"/>
<w:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 7"/>
<w:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 8"/>
<w:LsdException Locked="false" Priority="9" QFormat="true" Name="heading 9"/>
<w:LsdException Locked="false" Priority="39" Name="toc 1"/>
<w:LsdException Locked="false" Priority="39" Name="toc 2"/>
<w:LsdException Locked="false" Priority="39" Name="toc 3"/>
<w:LsdException Locked="false" Priority="39" Name="toc 4"/>
<w:LsdException Locked="false" Priority="39" Name="toc 5"/>
<w:LsdException Locked="false" Priority="39" Name="toc 6"/>
<w:LsdException Locked="false" Priority="39" Name="toc 7"/>
<w:LsdException Locked="false" Priority="39" Name="toc 8"/>
<w:LsdException Locked="false" Priority="39" Name="toc 9"/>
<w:LsdException Locked="false" Priority="35" QFormat="true" Name="caption"/>
<w:LsdException Locked="false" Priority="10" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Title"/>
<w:LsdException Locked="false" Priority="1" Name="Default Paragraph Font"/>
<w:LsdException Locked="false" Priority="11" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Subtitle"/>
<w:LsdException Locked="false" Priority="22" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Strong"/>
<w:LsdException Locked="false" Priority="20" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Emphasis"/>
<w:LsdException Locked="false" Priority="59" SemiHidden="false"
UnhideWhenUsed="false" Name="Table Grid"/>
<w:LsdException Locked="false" UnhideWhenUsed="false" Name="Placeholder Text"/>
<w:LsdException Locked="false" Priority="1" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="No Spacing"/>
<w:LsdException Locked="false" Priority="60" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Shading"/>
<w:LsdException Locked="false" Priority="61" SemiHidden="false"
UnhideWhenUsed="false" Name="Light List"/>
<w:LsdException Locked="false" Priority="62" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Grid"/>
<w:LsdException Locked="false" Priority="63" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 1"/>
<w:LsdException Locked="false" Priority="64" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 2"/>
<w:LsdException Locked="false" Priority="65" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 1"/>
<w:LsdException Locked="false" Priority="66" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 2"/>
<w:LsdException Locked="false" Priority="67" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 1"/>
<w:LsdException Locked="false" Priority="68" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 2"/>
<w:LsdException Locked="false" Priority="69" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 3"/>
<w:LsdException Locked="false" Priority="70" SemiHidden="false"
UnhideWhenUsed="false" Name="Dark List"/>
<w:LsdException Locked="false" Priority="71" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Shading"/>
<w:LsdException Locked="false" Priority="72" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful List"/>
<w:LsdException Locked="false" Priority="73" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Grid"/>
<w:LsdException Locked="false" Priority="60" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Shading Accent 1"/>
<w:LsdException Locked="false" Priority="61" SemiHidden="false"
UnhideWhenUsed="false" Name="Light List Accent 1"/>
<w:LsdException Locked="false" Priority="62" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Grid Accent 1"/>
<w:LsdException Locked="false" Priority="63" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 1 Accent 1"/>
<w:LsdException Locked="false" Priority="64" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 2 Accent 1"/>
<w:LsdException Locked="false" Priority="65" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 1 Accent 1"/>
<w:LsdException Locked="false" UnhideWhenUsed="false" Name="Revision"/>
<w:LsdException Locked="false" Priority="34" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="List Paragraph"/>
<w:LsdException Locked="false" Priority="29" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Quote"/>
<w:LsdException Locked="false" Priority="30" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Intense Quote"/>
<w:LsdException Locked="false" Priority="66" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 2 Accent 1"/>
<w:LsdException Locked="false" Priority="67" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 1 Accent 1"/>
<w:LsdException Locked="false" Priority="68" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 2 Accent 1"/>
<w:LsdException Locked="false" Priority="69" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 3 Accent 1"/>
<w:LsdException Locked="false" Priority="70" SemiHidden="false"
UnhideWhenUsed="false" Name="Dark List Accent 1"/>
<w:LsdException Locked="false" Priority="71" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Shading Accent 1"/>
<w:LsdException Locked="false" Priority="72" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful List Accent 1"/>
<w:LsdException Locked="false" Priority="73" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Grid Accent 1"/>
<w:LsdException Locked="false" Priority="60" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Shading Accent 2"/>
<w:LsdException Locked="false" Priority="61" SemiHidden="false"
UnhideWhenUsed="false" Name="Light List Accent 2"/>
<w:LsdException Locked="false" Priority="62" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Grid Accent 2"/>
<w:LsdException Locked="false" Priority="63" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 1 Accent 2"/>
<w:LsdException Locked="false" Priority="64" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 2 Accent 2"/>
<w:LsdException Locked="false" Priority="65" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 1 Accent 2"/>
<w:LsdException Locked="false" Priority="66" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 2 Accent 2"/>
<w:LsdException Locked="false" Priority="67" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 1 Accent 2"/>
<w:LsdException Locked="false" Priority="68" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 2 Accent 2"/>
<w:LsdException Locked="false" Priority="69" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 3 Accent 2"/>
<w:LsdException Locked="false" Priority="70" SemiHidden="false"
UnhideWhenUsed="false" Name="Dark List Accent 2"/>
<w:LsdException Locked="false" Priority="71" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Shading Accent 2"/>
<w:LsdException Locked="false" Priority="72" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful List Accent 2"/>
<w:LsdException Locked="false" Priority="73" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Grid Accent 2"/>
<w:LsdException Locked="false" Priority="60" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Shading Accent 3"/>
<w:LsdException Locked="false" Priority="61" SemiHidden="false"
UnhideWhenUsed="false" Name="Light List Accent 3"/>
<w:LsdException Locked="false" Priority="62" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Grid Accent 3"/>
<w:LsdException Locked="false" Priority="63" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 1 Accent 3"/>
<w:LsdException Locked="false" Priority="64" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 2 Accent 3"/>
<w:LsdException Locked="false" Priority="65" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 1 Accent 3"/>
<w:LsdException Locked="false" Priority="66" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 2 Accent 3"/>
<w:LsdException Locked="false" Priority="67" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 1 Accent 3"/>
<w:LsdException Locked="false" Priority="68" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 2 Accent 3"/>
<w:LsdException Locked="false" Priority="69" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 3 Accent 3"/>
<w:LsdException Locked="false" Priority="70" SemiHidden="false"
UnhideWhenUsed="false" Name="Dark List Accent 3"/>
<w:LsdException Locked="false" Priority="71" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Shading Accent 3"/>
<w:LsdException Locked="false" Priority="72" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful List Accent 3"/>
<w:LsdException Locked="false" Priority="73" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Grid Accent 3"/>
<w:LsdException Locked="false" Priority="60" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Shading Accent 4"/>
<w:LsdException Locked="false" Priority="61" SemiHidden="false"
UnhideWhenUsed="false" Name="Light List Accent 4"/>
<w:LsdException Locked="false" Priority="62" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Grid Accent 4"/>
<w:LsdException Locked="false" Priority="63" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 1 Accent 4"/>
<w:LsdException Locked="false" Priority="64" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 2 Accent 4"/>
<w:LsdException Locked="false" Priority="65" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 1 Accent 4"/>
<w:LsdException Locked="false" Priority="66" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 2 Accent 4"/>
<w:LsdException Locked="false" Priority="67" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 1 Accent 4"/>
<w:LsdException Locked="false" Priority="68" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 2 Accent 4"/>
<w:LsdException Locked="false" Priority="69" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 3 Accent 4"/>
<w:LsdException Locked="false" Priority="70" SemiHidden="false"
UnhideWhenUsed="false" Name="Dark List Accent 4"/>
<w:LsdException Locked="false" Priority="71" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Shading Accent 4"/>
<w:LsdException Locked="false" Priority="72" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful List Accent 4"/>
<w:LsdException Locked="false" Priority="73" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Grid Accent 4"/>
<w:LsdException Locked="false" Priority="60" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Shading Accent 5"/>
<w:LsdException Locked="false" Priority="61" SemiHidden="false"
UnhideWhenUsed="false" Name="Light List Accent 5"/>
<w:LsdException Locked="false" Priority="62" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Grid Accent 5"/>
<w:LsdException Locked="false" Priority="63" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 1 Accent 5"/>
<w:LsdException Locked="false" Priority="64" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 2 Accent 5"/>
<w:LsdException Locked="false" Priority="65" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 1 Accent 5"/>
<w:LsdException Locked="false" Priority="66" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 2 Accent 5"/>
<w:LsdException Locked="false" Priority="67" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 1 Accent 5"/>
<w:LsdException Locked="false" Priority="68" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 2 Accent 5"/>
<w:LsdException Locked="false" Priority="69" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 3 Accent 5"/>
<w:LsdException Locked="false" Priority="70" SemiHidden="false"
UnhideWhenUsed="false" Name="Dark List Accent 5"/>
<w:LsdException Locked="false" Priority="71" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Shading Accent 5"/>
<w:LsdException Locked="false" Priority="72" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful List Accent 5"/>
<w:LsdException Locked="false" Priority="73" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Grid Accent 5"/>
<w:LsdException Locked="false" Priority="60" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Shading Accent 6"/>
<w:LsdException Locked="false" Priority="61" SemiHidden="false"
UnhideWhenUsed="false" Name="Light List Accent 6"/>
<w:LsdException Locked="false" Priority="62" SemiHidden="false"
UnhideWhenUsed="false" Name="Light Grid Accent 6"/>
<w:LsdException Locked="false" Priority="63" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 1 Accent 6"/>
<w:LsdException Locked="false" Priority="64" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Shading 2 Accent 6"/>
<w:LsdException Locked="false" Priority="65" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 1 Accent 6"/>
<w:LsdException Locked="false" Priority="66" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium List 2 Accent 6"/>
<w:LsdException Locked="false" Priority="67" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 1 Accent 6"/>
<w:LsdException Locked="false" Priority="68" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 2 Accent 6"/>
<w:LsdException Locked="false" Priority="69" SemiHidden="false"
UnhideWhenUsed="false" Name="Medium Grid 3 Accent 6"/>
<w:LsdException Locked="false" Priority="70" SemiHidden="false"
UnhideWhenUsed="false" Name="Dark List Accent 6"/>
<w:LsdException Locked="false" Priority="71" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Shading Accent 6"/>
<w:LsdException Locked="false" Priority="72" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful List Accent 6"/>
<w:LsdException Locked="false" Priority="73" SemiHidden="false"
UnhideWhenUsed="false" Name="Colorful Grid Accent 6"/>
<w:LsdException Locked="false" Priority="19" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Subtle Emphasis"/>
<w:LsdException Locked="false" Priority="21" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Intense Emphasis"/>
<w:LsdException Locked="false" Priority="31" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Subtle Reference"/>
<w:LsdException Locked="false" Priority="32" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Intense Reference"/>
<w:LsdException Locked="false" Priority="33" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Book Title"/>
<w:LsdException Locked="false" Priority="37" Name="Bibliography"/>
<w:LsdException Locked="false" Priority="39" QFormat="true" Name="TOC Heading"/>
</w:LatentStyles>
</xml><![endif]--><!--[if gte mso 10]>
<style>
/* Style Definitions */
table.MsoNormalTable
{mso-style-name:"Table Normal";
mso-tstyle-rowband-size:0;
mso-tstyle-colband-size:0;
mso-style-noshow:yes;
mso-style-priority:99;
mso-style-qformat:yes;
mso-style-parent:"";
mso-padding-alt:0in 5.4pt 0in 5.4pt;
mso-para-margin-top:0in;
mso-para-margin-right:0in;
mso-para-margin-bottom:10.0pt;
mso-para-margin-left:0in;
line-height:115%;
mso-pagination:widow-orphan;
font-size:11.0pt;
font-family:"Calibri","sans-serif";
mso-ascii-font-family:Calibri;
mso-ascii-theme-font:minor-latin;
mso-fareast-font-family:"Times New Roman";
mso-fareast-theme-font:minor-fareast;
mso-hansi-font-family:Calibri;
mso-hansi-theme-font:minor-latin;}
</style>
<![endif]-->
<br />
<div class="MsoNormal">
Those inside and outside the legal academy are still coming
to terms with the <a href="http://prawfsblawg.blogs.com/prawfsblawg/2014/07/we-have-lost-our-beloved-friend-dan-markel.html">sudden and tragic loss</a> of Florida State University law
professor Dan Markel, who was shot and killed at his Tallahassee home on
Friday.<span style="mso-spacerun: yes;"> </span>Dan touched the lives of
hundreds of students and colleagues.<span style="mso-spacerun: yes;"> </span>I
was fortunate to know him since law school, and wanted to share some
(admittedly scattered) memories of a friend lost too soon.</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Even as a 1L, when most of us felt uncertain and trembling
about our career decisions (or even just making it through the next class), Dan
carried a certain unusual confidence.<span style="mso-spacerun: yes;"> </span>In
criminal law, he argued in favor of sending people to “virtue schools.”<span style="mso-spacerun: yes;"> </span>He lugged his old Macintosh laptop to all
classes, dragging the plug carefully across the floor behind his classmates’
chairs.<span style="mso-spacerun: yes;"> </span>On Saturday afternoons after
synagogue, he was known to offer friends a mean vegetarian chopped liver.<span style="mso-spacerun: yes;"> </span>He was a character, and a sincere one.</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
I lost daily contact with Dan after we graduated in 2000,
but he resurfaced in my consciousness one day in 2005, when he launched Prawfsblawg.<span style="mso-spacerun: yes;"> </span>I was in private practice and enjoying it,
but reading the academic posts by Dan and his friends added a powerful new
dimension to the legal issues I was contemplating.<span style="mso-spacerun: yes;"> </span>I wanted to be part of it.<span style="mso-spacerun: yes;"> </span>An in 2009, when I finally decided to break
into the legal academy, Dan warmly and cheerfully facilitated my introduction
to colleagues far and wide.<span style="mso-spacerun: yes;"> </span>He reviewed
my early scholarship.<span style="mso-spacerun: yes;"> </span>Even though I
wrote in civil procedure and he in criminal law, he connected me to the right
people almost effortlessly.<span style="mso-spacerun: yes;"> </span>Later, after
I joined the New England Law faculty, he encouraged me to guest blog at Prawfs,
which I have done and enjoyed on more than one occasion.<span style="mso-spacerun: yes;"> </span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
It is remarkable that someone would do so much to help an old
classmate who had been out of sight and out of mind for almost a decade.<span style="mso-spacerun: yes;"> </span>But that was just Dan being Dan.<span style="mso-spacerun: yes;"> </span>The outpouring of grief at his loss on
Facebook and Prawfsblawg is a testament to how many lives he touched.<span style="mso-spacerun: yes;"> </span>He was taken too young, and we will miss him
greatly.<span style="mso-spacerun: yes;"> </span>Baruch Dayan Emet.</div>
Jordan Singerhttp://www.blogger.com/profile/17054959382416914029noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-29782879250907457742014-05-15T09:12:00.003-04:002015-12-04T15:26:40.043-05:00Media and Transitional Justice: A Complex, Understudied RelationshipI first became interested in the role of media in transitional justice settings in 2009, while directing a <a href="http://fujimoriontrial.org/" target="_blank">monitoring project</a> of the human rights trial of former Peruvian President Alberto Fujimori. In the course of the project, the local press coverage of the trial drew my attention, with its explosive and provocative headlines often focused less on the proceedings of the trial as it was on scandal and speculation about the defendant and the victims.<br />
<br />
I wondered how public consumption of these accounts contributed to the overall success (or not) of Peru’s transitional justice project. In my scholarly pursuit of thinking through this question, I was amazed to discover that few transitional justice scholars had examined it. Moreover, few countries have consciously considered the role of the media in the design of their transitional justice strategies.<br />
<br />
How did we miss this central question? I think, in part, because assumptions about journalism and how it functions have insulated it from academic or practitioner scrutiny. For example, it is assumed that the media will automatically perform in a way consistent with the ‘canons’ of the journalistic profession and, moreover, that traditional peace-time approaches to journalism are the best suited for transitioning societies.<br />
<br />
However, my observations compel me to take the stand that we need to question these assumptions, and for that reason I welcome ICTJ’s online debate.<br />
<br />
Lisa Laplante<br />
<br />
<i>Professor Laplante directs New England Law's Center for International Law and Policy. Her blog post is part of an online debate on “Should the Media Actively Support Transitional Justice Efforts?” Her complete essay and those of other debaters are available on the <a href="http://ictj.org/debate/article/media-and-transitional-justice-complex-understudied-relationship" target="_blank">International Center for Transitional Justice (ICTJ) website</a>.</i>Webmasterhttp://www.blogger.com/profile/05506162355597607649noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-27606122609300790372013-05-11T09:39:00.000-04:002013-07-09T09:43:00.944-04:00Privacy and the Surveillance StateAccording to a recent New York Times/CBS News <a href="http://www.nytimes.com/2013/05/01/us/poll-finds-strong-acceptance-for-public-surveillance.html">poll</a>, Americans by a large margin favor installing video surveillance devices in public places in order to provide greater security, with 78 percent of participants saying such surveillance is a good idea.<br />
<br />
The poll was taken in the wake of the bombings in Boston on Marathon Monday and the results likely reflect the very real anxiety that such horrific events can produce. The positive reaction to greater surveillance is natural and understandable. But that does not necessarily mean that it will lead to sound public policy.<br />
<br />
It remains that it is always easier to give away someone else's privacy interests, especially hypothetically. Most people cannot imagine ever being the target of government surveillance—for them, the potentially ubiquitous video recording devices will be aimed at someone else.<br />
<br />
That is fine as far as it goes, but the fact is that, under the Fourth Amendment doctrine for determining whether you have a protectable privacy right as against the government, the Supreme Court has repeatedly said that any expectation of privacy you assert must be objectively reasonable. We all do lots of things in public that we assume to be private—like talking on cell phones, text messaging, and even having a conversation with the person walking next to you, and believe the assumption to be reasonable because we do not really expect anyone nearby actually to listen to what we are saying or texting. But the fact that someone could do so, according to the Court, eliminates any true expectation of privacy. And even if that were not the case, could we say any of these communications reasonably should be deemed private when the government has the capacity to record and review all of them?<br />
<br />
It could be argued that the problem lies not in our actual expectations but in Fourth Amendment doctrine itself. But despite noises from some justices in recent years—like Justice Sotomayor's concurring opinion in the GPS case from last year, <cite class="caselaw"><a href="http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf">United States v. Jones</a></cite>—it's far from clear that a major doctrinal shift is coming.<br />
<br />
What is interesting, though, is that just as we seem willing to allow the government greater surveillance capabilities, we balk at the potential of new technology like Google Glasses to allow people to accomplish a similar end, by surreptitiously taking photos and short videos of anyone who happens to be nearby. Perhaps it is the fact that this technology allows our privacy to be invaded without our knowledge or consent that so bothers us. Whatever the reason, legislators in many state and local governments have begun exploring efforts to regulate these Google devices, which are not yet on the market.<br />
<br />
Such regulation would seem to indicate that people are at least somewhat concerned to maintain some degree of privacy in public. But more than anything it reveals our ambivalence about privacy. Trading privacy for security seems like good policy to many, but it's worth remembering that the constitutional expectation of privacy test historically has functioned as a one-way ratchet, with the scope of privacy as against the government continually being diminished as it becomes more difficult to maintain that expectations of privacy are reasonable.<br />
<br />
Lawrence Friedman Lawrence Friedmanhttp://www.blogger.com/profile/13071459429906597737noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-61280172381071186262013-03-27T20:37:00.001-04:002013-05-13T11:10:32.846-04:00Reflecting on Gideon at 50This month marks the 50th anniversary of <i>Gideon v Wainwright</i>, the Supreme Court’s celebrated decision establishing the constitutional right to counsel for indigent criminal defendants. The occasion provides much to commemorate, but also reminds us how far there is to go. Indeed, it has become commonplace to note that <i><a href="http://www.amazon.com/Gideons-Trumpet-Anthony-Lewis/dp/0679723129">“Gideon’s Trumpet”</a></i> (the title to the wonderful book by Anthony Lewis, who just passed way) has been “muted” by widespread violations of the right to counsel. Blame rests primarily with persistent underfunding of the defense function and the excessive caseloads that result. An assembly line of routinized pleas, in which lawyers engage in little or no advocacy on behalf of their clients, too often is the norm in courthouses across the country.<br /><br />
The extent of the problem is well-documented. According to the Constitution Project’s exhaustive study, <i><a href="http://www.constitutionproject.org/pdf/139.pdf">Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel</a>,</i> underfunded and overworked public defenders:<br /><br />
"[A]re constantly forced to violate their oaths as attorneys because their caseloads make it impossible for them to practice law as they are required to do according to the profession’s rules. They cannot interview their clients properly, effectively seek their pretrial release, file appropriate motions, conduct necessary fact investigations, negotiate responsibly with the prosecutor, adequately prepare for hearings, and perform countless other tasks that normally would be undertaken by a lawyer with sufficient time and resources."<br />
<br />
Nor is the problem new. Ever since <i>Gideon </i>was rendered, a parade of studies has documented continuous underfunding of indigent defense services and the problems that result. And while each report provides its own perspective, invariably the conclusion is the same: criminal defendants are represented too often by lawyers -- whether public defender, appointed counsel or otherwise<!--[if gte mso 9]><xml>
<o:OfficeDocumentSettings>
<o:AllowPNG/>
</o:OfficeDocumentSettings>
</xml><![endif]--><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 115%; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;">—</span>whose capacity to render adequate representation is severely limited. As <a href="http://www.schr.org/about/who">Stephen Bright</a>, president of the Southern Center for Human Rights, has recently stated, “The representation received by most poor people accused of crimes -- if they receive any at all<!--[if gte mso 9]><xml>
<o:OfficeDocumentSettings>
<o:AllowPNG/>
</o:OfficeDocumentSettings>
</xml><![endif]--><span style="font-family: "Times New Roman","serif"; font-size: 12.0pt; line-height: 115%; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;">—</span>is a far cry from the constitutional requirement of ‘the guiding hand of counsel at every step in the proceedings’” contemplated by <i>Gideon </i>and its progeny.<br />
<br />
Changing course after decades of neglect is not easy, although important efforts at reform are underway. They include litigation to produce greater compliance with <i>Gideon’s</i> demands. Currently pending before the <a href="http://www.nij.gov/nij/topics/courts/indigent-defense/2010-symposium/thompson.pdf">Supreme Court of Florida</a>, for example, is a case that, if successful, will permit public defenders in Miami-Dade County to decline new appointments and to withdraw from existing ones when caseloads, which can exceed 500 cases per attorney, become intolerable. Other efforts include promoting the independence of defense lawyers through the creation of statewide indigent defense commissions. New Mexico’s voters, for instance, recently approved <a href="http://www.nlada.net/jseri/blog/gideon-alert-new-mexico-voters-approve-independence-public-defender">a constitutional amendment</a> creating an independent commission to oversee the provision of defense services to indigent clients and to promote a robust defense function. State bar associations have also taken a leading role. For example, Washington’s <a href="http://www.courts.wa.gov/content/publicUpload/Press%20Releases/25700-A-1004.pdf">highest court</a> recently adopted recommendations authored by the state’s bar association to cap caseloads at levels that, while still high, comply with national recommendations. Such efforts make meaningful contributions and must be encouraged.<br />
<br />
Lasting solutions, however, will require resetting the political calculations that drive funding decisions, which in turn depend upon raising and sustaining public consciousness about the critical importance of adequate defense. Here, some feint glimmers of hope can be detected. For example, a new award-winning documentary that will premiere this summer on HBO, <i><a href="http://gideonsarmythefilm.com/">Gideon’s Army</a></i>, tracks the stories of three brave public defenders in the Deep South who fight for justice for their clients despite the long odds against them. Also profiled in the film is an innovative Atlanta-based organization, called <a href="http://gideonspromise.org/">Gideon’s Promise</a>, which works with public defense organizations and others to train and support frontline defenders. Other notable efforts to build public awareness include a new film by the Constitution Project narrated by Martin Sheen, <a href="http://constitutionproject.org/publications-resources/defending-gideon/">Defending Gideon</a>, and recent books on the importance of effective criminal defense (including Amy Bach’s excellent investigative account detailing the failings of the criminal justice process, <i><a href="http://www.amazon.com/Ordinary-Injustice-America-Holds-Court/dp/0805092277">Ordinary Injustice: How America Holds Court</a>,</i> and the just released book on Gideon itself, <i><a href="http://www.amazon.com/Chasing-Gideon-Elusive-Peoples-Justice/dp/1595588698">Chasing Gideon: The Elusive Quest for Poor People's Justice</a></i> by Karen Houppert).<br />
<br />
Time will tell whether these and other efforts can change the narrative about <i>Gideon’s</i> legacy. Optimists will view them as part of the arc toward ensuring a meaningful right to counsel, while pessimists may see them as part of the same story often retold. But all should agree that the time is long past to make <i>Gideon’s</i> promise a reality. <br />
<br />
Tigran Eldred Tigran Eldredhttp://www.blogger.com/profile/17255250112736440826noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-14492816937355038152012-07-18T16:46:00.002-04:002013-05-13T11:13:28.990-04:00How To Succeed in Law School?I received an interesting question recently from an incoming student: “How does a student get through New England Law successfully?” In thinking about how to answer this question, I decided to articulate the most common early mistakes that I see students make. So, for the benefit of students starting law school this fall, here’s the list: <br /><br />
1. Not using time wisely: underworking. Some of the students who suffer from the "not using time wisely" problem simply don't spend enough time on law school. Often, these students think that law school is like undergraduate study, where some students could put in maybe four hours a day during the semester on classes and/ or studying, and then cram for finals at the end. It just doesn't work like that in law school, because there's so much material that you have to comprehend immediately. I recommend that first semester students assume that they need to put in 40 hours a week during the semester, and about 60-80 hours a week during and just before finals. I've found that students who work hard during the semester on fully understanding the law as they learn it have more time before exams to focus on exam prep (i.e. how to write a law school essay, etc.)<br /><br />
2. Not using time wisely: overworking. Some students who don't use time wisely are not working efficiently. A lot of times, these students are diligent, hard-working students who have the exact right attitude for law school, but they try too hard to do EVERYTHING. Students who do well in law school know their limits and are able to prioritize the important things and de-prioritize the less important things. So, what are the important things? That's my next point....<br /><br />
3. Understanding what law school is actually about. Many students underperform because they misconceive what they're supposed to be learning and how they're supposed to demonstrate it on final exams. This problem actually falls into two categories....<br /><br />
a. Understanding what you're supposed to do during the semester. Law school is odd in that we seem to send the message that the cases are the most important thing you're studying. Because most classes use the Socratic method and the case method, the implicit message is that you will be tested on cases. When I was an undergrad, I took a Constitutional Law class in which the final exam simply asked us to EXPLAIN ten cases we'd read. Law school is NOTHING like that. Although the cases "matter," what they matter FOR most is not what many students think. What the cases matter for is: (1) the legal rule (i.e. what the law is); and (2) how the facts apply to that rule. The legal rule is important because that's the blackletter law that should go into your outline; it's the "stuff" you need to know. How the court applies the facts to the law is important as an example for you of how to DO legal analysis. And, that leads to the second category....<br /><br />
b. Understanding what's expected of you on exams. On essay exams, you are graded mostly on your legal analysis. Most 1L students think that you're graded on your ability to recite the rules of law that you learned from the cases and to determine the outcome of hypotheticals "correctly." While you DO need to know and express those rules on exams, that counts for maybe 10% of your grade. The other 90% is based on your legal analysis. So, what's the difference? Here's an example:<br /><br /><br />Bad essay answer: The Issue raised in this problem is whether D is guilty of murder. Murder is the premeditated killing of another person. Because D premeditated, he's guilty of murder.<br /><br /><br />Good essay answer: The Issue raised in this problem is whether D is guilty of murder. Murder is the premeditated killing of another person. The prosecution will argue that because D and victim had recently had an argument, that shows that D had the motive to kill victim and thus he likely premeditated. D will argue, though, that this killing occurred in the heat of passion, because of the recent disagreement where insults were exchanged, and he can therefore only be convicted of manslaughter. This case is similar to State v. Jones where D was in a heated exchange with victim and ultimately killed him. The court held that "mere words are not enough" to allow a finding of "heat of passion." Like Jones, this case involves only mere words. These words were insufficient to permit a finding of "heat of passion," and therefore D is guilty of murder. <br /><br />
The "Bad" example is an extreme version of an inclination I see often; students think that they need to say the rule and say the result -- almost like a written version of a multiple choice question. By contrast, in the “Good” answer, the student not only stated the law but also applied it in an almost dialectical fashion. This shows that the student will be a good attorney because not only can she represent her client, but she can also foresee and rebut her adversary’s arguments. <br /><br />
So, there you have it. Those are, in my humble opinion, probably the biggest and most common mistakes that I see. I invite comments from current students on their perceptions and experiences, too. If my ideas on this are controversial, I certainly welcome other thoughts. I think the more information we can provide to incoming students, the better prepared they will be to succeed. <br />
Louis Schulzehttp://www.blogger.com/profile/16418618316603400003noreply@blogger.com1tag:blogger.com,1999:blog-5879631265938906186.post-41816665226427761362012-06-29T15:35:00.003-04:002012-06-29T15:35:45.182-04:00Health Care and the Commerce ClauseA friend asked me, in all sincerity, how I plan to teach National Federation of <a href="http://s3.documentcloud.org/documents/392172/supreme-court-decision-on-the-patient-protection.pdf" target="_blank"><i>Independent Business v. Sebelius</i></a>—the Health Care Cases—in my constitutional law class next spring. It’s a good question. Chief Justice Roberts’s opinion discusses and alters commerce and spending clause doctrine and elaborates on the taxing power—the case could be its own course in Congressional authority under Article I of the Constitution. (My friend also said she’s still trying to figure out whether Roberts actually called balls and strikes in <i>Sebelius </i>or “if he took the ball away from the pitcher and told everyone to go home because the game was over”). <br />
<br />What may pose the greater challenge is how to incorporate into discussion of the constitutionality of the Affordable Care Act’s individual mandate some sense of the decision’s political dimensions. Democrats have praised the decision and commentators have expressed respect for the Chief Justice’s decision to side with the so-called liberal justices. But at a certain level his decision appears motivated less by fidelity to constitutional principles than a desire to protect the integrity of an institution—the U.S. Supreme Court—that has surprisingly often in the past decade paid slight deference to the work of the elected and politically accountable branches of the federal government. <br />
<br />Indeed, as my colleague Louis Schulze has <a href="http://professors.nesl.edu/2012/06/normal-0-false-false-false-en-us-x-none.html" target="_blank">noted</a>, in this case there were five votes for the proposition that an individual decision to freeload when it comes to health care, which has a demonstrable—and profound—impact on interstate commerce, is somehow not activity within Congress’s reach. This conclusion, as Justice Ruth Bader Ginsburg notes in her opinion in <i>Sebelius</i>, is hardly self-evident in light of the Court’s commerce clause precedents, and it arguably fails to respect the legislature’s competence to make judgments about the aggregate effect of economic decision-making. Given that, as one appeals court judge noted, “it is possible to restate most actions as corresponding inactions with the same effect,” the Court’s new activity-inactivity distinction may simply be an invitation to judges to engage in subjective assessments about the validity of a wide range of federal regulations.<br />
<br />As discussion begins about the long-term implications of this new commerce clause principle, it would be good to remember that experiments with formalistic constitutional doctrines that effectively cabin the federal government’s ability to regulate have been relatively short-lived. For instance, in the 1995 case <a href="http://scholar.google.com/scholar_case?case=18310045251039502778&q=united+States+v.+Lopez&hl=en&as_sdt=2,22" target="_blank"><i>United States v. Lopez</i></a>, the Court held that Congress can only regulate activity that is inherently economic under the commerce clause—and then ten years later concluded in <a href="http://scholar.google.com/scholar_case?case=15647611274064109718&q=gonzales+v.+raich&hl=en&as_sdt=2,22" target="_blank"><i>Gonzales v. Raich</i></a> that Congress may regulate even non-economic activity when it is part of a broad effort to regulate a national market, effectively embracing a means by which Congress can get around <i>Lopez</i>. The Court may soon discover that in order for the federal government to address some of the truly national problems the country now faces, it will have to develop a way for Congress to get around its new activity-inactivity distinction, too.<br />
<br />Lawrence Friedman<br />Lawrence Friedmanhttp://www.blogger.com/profile/13071459429906597737noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-87462868724275153432012-06-28T15:45:00.003-04:002012-06-29T15:12:33.279-04:00The Health Care Cases: “Democrats Win the Battle, but Lose the War … and Don’t Even Seem to Know it Yet” or “How Chief Justice Roberts Got to Have his Cake and Eat it, Too"I’m baffled by the reaction to today’s ruling in <i>National Federation of Independent Businesses v. Sebelius</i> (which is quickly attaining the nickname “The Health Care Cases.”). Democrats seem to be rejoicing “a win,” in that the Affordable Care Act was upheld. What everyone seems to be ignoring is the fact that the Court also held that: (a) Congress lacked the power to enact the individual mandate under the Commerce Clause; and (b) it also lacks the power under the Spending Clause to withhold Medicare funding to states who refuse to participate in the Medicare expansion. In crowing about this “victory” for the President, I honestly don’t think that Democrats have quite figured out the long-term consequences of what Chief Justice Roberts just pulled off today. But, know this: his feat today is downright historic…<br />
<br />
Most people probably don’t care about the Commerce Clause or the Spending Clause. These were just some words of jargon that lawyers were throwing around, and what people really cared about was whether Obamacare would still exist. The elation to be heard outside the Supreme Court building seems to confirm this, and even the commentary by talk radio pundits in the first hours after the decision seemed to focus only on the survival of the ACA. What folks are missing is the fact that the Supreme Court just fundamentally altered (or put back into place, depending upon where you’re standing) the balance of power between states and the federal government.<br />
<br />
To be clear, the Commerce Clause is the source of power for the vast majority of federal social legislation. Georgetown Constitutional Law Professor Randy Barnett, the architect of the challenge to the ACA and longtime advocate for curtailing federal power has stated that the original meaning of Congress’s power under the Commerce Clause is that it only extends to “trade in things – goods” and that it merely creates a free-trade zone among the states with Congress regulating matters within the stream of commerce. Barnett’s theory on the ACA is that even if insurance can be deemed a “good,” it still is beyond the reach of the Commerce Clause because the individual mandate compels citizens to enter into commerce rather than merely regulating what is already in it. By seemingly agreeing with this theory today, the Supreme Court arguably calls into question such fundamental social reforms as the Civil Rights Act, workplace safety laws, and minimum wage laws … and yet Democrats are celebrating.<br />
<br />
Despite the impact of today’s ruling on the Commerce Clause, Democrats seem just about ready to canonize Chief Justice Roberts, given that he – and not Justice Kennedy, as had been widely expected – provided the swing vote for saving the ACA. Little to do they know, apparently, that what the Chief Justice pulled off today was nothing short of a masterstroke. As a longtime advocate of a conservative approach to interpreting the constitution, the Chief Justice no doubt seeks to reinforce the power dynamic between the states and the federal government. As a former law clerk to then-Associate Justice Rehnquist, he no doubt relishes the opportunity to complete the federalism revolution his former boss started. At the same time, though, Chief Justice Roberts also appreciates the impact of the Court’s actions on its legitimacy and has openly strived to avoid closely-divided or blatantly partisan rulings from the Court.<br />
<br />
Today, he somehow was able to achieve those two seemingly incompatible results simultaneously. By narrowing the Commerce Clause, he has substantially undermined the federal government’s power to involve itself in citizen’s lives; but, by casting the deciding vote to uphold the ACA’s individual mandate as a permissible “tax,” he achieves the pragmatic goal of deferring to one of the elected branches of government and showing that the Court is still above politics. He literally got to have his cake and eat it, too, and it shouldn’t be too long until the cognoscenti begin to recognize the sage brilliance of this maneuvering.<br />
<br />
So, for now, Democrats are celebrating. Hopefully, the Affordable Care Act will work as advertised and provide health insurance to millions of people who otherwise would have suffered. But, in the not too distant future, we will certainly have to reckon with the real results of today’s decision: “The New Commerce Clause.” Whether that occurs when the Supreme Court invalidates some crucial social policy or whether it occurs when Congress is too timid to legislate, one thing is certain: Chief Justice John Roberts will be in the SCOTUS Hall of Fame, because this guy just pulled off the Kobayashi Maru of constitutional adjudication. <br />
<br />
Louis SchulzeLawrence Friedmanhttp://www.blogger.com/profile/13071459429906597737noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-10071676196042291922012-06-04T15:20:00.001-04:002012-06-04T15:20:12.104-04:00The Constitution, Congress, and the Repeal AmendmentWhen Congress acts pursuant to its enumerated powers and does not infringe upon an individual right or liberty, the U.S. Supreme Court has traditionally treated the legislation with deference. This approach lately has come under fire. Randy E. Barnett, who teaches constitutional law at Georgetown, has endorsed the enactment of the so-called “repeal amendment” – an amendment to the Constitution which would provide for the repeal of a particular federal law or regulation “when the legislatures of two-thirds of the several states approve resolutions” favoring the same. <br />
<br />Such an amendment is contrary to the intentions of the framers as reflected in the text and structure of the Constitution itself. They met in Philadelphia in 1787 to address the inadequacies of government under the Articles of Confederation, finally recognizing that, in order for the young nation to move forward – for its economy to thrive, for its borders to be protected, for its people to be secure in the world – it needed a government to both represent and speak for all citizens – a government of the United States, supreme by design in matters of national policy both domestic and foreign. <br />
<br />By subjecting every national policy to review by the people acting through their state legislatures, the repeal amendment would threaten the most vital aspects of the governmental plan adopted by the framers. As my late colleague George Dargo <a href="http://professors.nesl.edu/2010/12/zombie-constitutionalism.html" target="_blank">put it</a>, “[t]o 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.”<br />
<br />Of course, altering the architecture of the American government is the point of the repeal amendment. Which begs the question whether our constitutional architecture, as understood by the Supreme Court, has truly failed us. Proponents of the amendment assert that the federal government is out of control – an assertion that assumes the federal government is divorced from the people it serves. Indeed, Professor Barnett has <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2021412" target="_blank">argued</a>, in the context of the challenge to the Patient Protection and Affordable Care Act, that, “[i]f Congress can mandate that citizens do anything that is convenient to its regulation of the national economy,” then sovereignty lies with the federal government rather than the people and “Congress has the prerogative powers of King George III.”<br />
<br />But that is not right: unlike an unelected king, Congress is not an entity separate from the people – it is the people. And if the people don’t like the individual mandate, or indeed any federal policy, they have ample means at their disposal to make that view known to their congressional representatives, as indeed many have since the Affordable Care Act became law.<br />
<br />The people, moreover, cannot reliably be expected to enforce the Constitution. When the Court reviews a Congressional enactment, it is engaged in the process of determining the law’s constitutional validity, a process dictated by established doctrines that describe the boundaries of acceptable Congressional action and at the same time respect the limits of the judiciary’s institutional role in our governmental system. These doctrines serve to direct and constrain judicial discretion, to push judges to exercise legal rather than political or emotional judgments about the action Congress has taken.<br />
<br />The repeal amendment, by contrast, invites the exercise of political and emotional judgments. People will favor the repeal of particular federal policies simply because they don’t like those laws. State legislative resolutions favoring repeal accordingly will be the result of passion, not reasoned judgment about the national policies Congress is constitutionally authorized to pursue. <br />
<br />In the end, then, proponents of the repeal amendment seek to achieve political and not necessarily constitutional goals. Luckily for them, we already have at hand the means through which we can control our representatives in Congress, and thereby control the reach of the federal government: they are called elections, every two years for Representatives, every six for Senators. <br /><br />Lawrence Friedman<br />Lawrence Friedmanhttp://www.blogger.com/profile/13071459429906597737noreply@blogger.com1tag:blogger.com,1999:blog-5879631265938906186.post-71146874844184900492012-05-16T20:34:00.003-04:002012-06-29T15:06:09.715-04:00Changing Expectations of Privacy, One Facebook User at a TimeChanging Expectations of Privacy, One Facebook User at a Time<br />Anticipating Facebook’s initial public offering, a <i>New York Times</i> reporter <a href="http://www.nytimes.com/2012/05/15/technology/facebook-needs-to-turn-data-trove-into-investor-gold.html?pagewanted=all" target="_blank">observed </a>that Mark Zuckerberg “has managed to amass more information about more people than anyone else in history.”<br /><br />Technology – the Internet – made this possible. But it was not technology alone: millions of people have willingly given to Facebook their names, photos and other personal information. In exchange, they get access to a service that enables them to engage in a vast, new form of social interaction with anyone else who happens to be a Facebook user. All this accumulated information about its users, their price of admission, is Facebook’s greatest asset – it is the reason the company’s public offering has attracted such attention.<br /><br />Of course, as Facebook develops new ways to monetize this asset, it must pay some attention to users’ anxiety about exactly that. A <a href="http://articles.boston.com/2012-05-15/business/31712864_1_facebook-shares-ceo-mark-zuckerberg-social-networking-site" target="_blank">recent poll</a> shows that most Facebook users report having “little or no faith that the company will protect their personal information.” Indeed, just 13 percent of users trust Facebook to guard their data, and “only 12 percent would feel safe making purchases through the site.”<br /><br />But it’s not clear that these figures should give Facebook much pause. Mark Zuckerberg has succeeded in creating a service so wildly popular that it can count the vast majority of people under the age of 35 as users. And Facebook is committed to the constant enhancement of the experience of its users, so that they will continue willingly to give up information about themselves. By seeking to establish Facebook as the default platform for social networking and communication, moreover, Zuckerberg and his team are transforming the use of Facebook into a virtual necessity for living in the modern world.<br /><br />Regardless of their concerns, then, every one of its users is helping Facebook to change societal expectations about the nature and limits of privacy – about what information can and should be deemed ours and ours alone. That change is the basis for Facebook’s promise to its shareholders – the promise that it will never stop trying to find ways to enhance its ability to discover all that it can about its users. Facebook will realize its full potential for shareholders when it can predict what its users want, perhaps even before they know themselves. That was once something we could state with confidence only of close friends and family.<br /><br />Lawrence FriedmanLawrence Friedmanhttp://www.blogger.com/profile/13071459429906597737noreply@blogger.com0tag:blogger.com,1999:blog-5879631265938906186.post-43790074443018024432012-04-27T11:26:00.000-04:002012-04-30T11:21:43.757-04:00Charles Taylor Convicted of War Crimes and Crimes Against HumanityThe Special Court for Sierra Leone announced earlier today that Charles Taylor, the former President of Liberia, was convicted on all counts of an 11-count indictment, which alleged that he was responsible for crimes committed by rebel forces during Sierra Leone’s decade-long civil war. The Special Court’s Trial Chamber found unanimously that Mr. Taylor aided and abetted RUF and AFRC rebels in the commission of war crimes and crimes against humanity in Sierra Leone. This conviction is significant and historic for many reasons, not the least of which is that Charles Taylor is the first head of state to be indicted, tried, and convicted by an international tribunal.<br /><br />The Trial Chamber also released a judgment summary and stated that the full judgment will be released at a later date. An item of particular interest in the <a href="http://www.sc-sl.org/LinkClick.aspx?fileticket=86r0nQUtK08%3d&tabid=53" target="_blank">judgment summary</a> is how the trial chamber dealt with Taylor’s liability even though the evidence did not show that he personally committed the crimes charged in the indictment. The trial chamber first considered Taylor’s liability under the well recognized doctrine of command responsibility. Under Article 6(3) of the applicable statute a superior is criminally responsible if the superior knew or had reason to know that his or her subordinate was about to commit crimes prohibited by the Statute or had done so, and the superior failed to take the necessary and reasonable measures to prevent or punish the perpetrators.<br /><br />The Trial Chamber found that Taylor knew or had reason to know that the forces operating in Sierra Leone were committing the crimes charged in the indictment. However, the Trial Chamber noted that the prosecution must also demonstrate that the superior had effective “command and control” over his subordinates – i.e. the material ability to prevent or punish the commission of the offense. Here the trial chamber found that the prosecution failed to prove Taylor’s command and control over these forces. At most, the prosecution could only prove that Taylor had substantial influence over the leadership of the RUF and AFRC forces and that Taylor provided guidance, support, and advice to the RUF and AFRC leadership, but that did not rise to the level of command and control. Accordingly, the Trial Chamber rejected Taylor’s liability under the doctrine of command responsibility.<br /><br />Instead the Trial Chamber assessed Taylor’s liability as an aider and abettor. The prosecution’s theory was that Taylor provided practical assistance, encouragement, or moral support, and these acts had a substantial effect on the perpetration of the crimes charged in the Indictment, and that Taylor had a clear intent to act in support of those crimes. What is most interesting about this alternative theory is that, while the prosecution did not have to prove that Taylor had command and control over the forces, they had to prove that Taylor knew that his acts would assist the commission of the crime by the perpetrator, or that he was aware of the substantial likelihood that his acts would assist the commission of a crime by the perpetrator. In cases of specific intent crimes, such as acts of terrorism, Taylor must also be aware of the specific intent of the perpetrator. This is a higher <i>mens rea</i> standard than the prosecution would have to prove under the command responsibility theory, under which the prosecution is only required to show that Taylor knew or had reason to know about the crimes being committed by the RUF and AFRC. <br /><br />Interestingly, the Trial Chamber found that the prosecution established Taylor’s criminal liability under this aider and abettor theory. The judgment summary does not provide specific facts that the Trial Chamber relied on to determine that the prosecution satisfied this heightened <i>mens rea</i> requirement. This will be something to pay attention to when the full judgment is released.Victor Hansenhttp://www.blogger.com/profile/16207389774973651402noreply@blogger.com0