New England Law Professors

Changing Expectations of Privacy, One Facebook User at a Time

noreply@blogger.com (Lawrence Friedman) — Thu, 17 May 2012 00:34:00 +0000

Anticipating Facebook’s initial public offering, a New York Times reporter observed that Mark Zuckerberg “has managed to amass more information about more people than anyone else in history.”

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.

Of course, as Facebook develops new ways to monetize this asset, it must pay some attention to users’ anxiety about exactly that. A recent poll 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.”

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.

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.

Lawrence Friedman

Charles Taylor Convicted of War Crimes and Crimes Against Humanity

noreply@blogger.com (Victor Hansen) — Fri, 27 Apr 2012 15:26:00 +0000

The 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.

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 judgment summary 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.

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.

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 mens rea 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.

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 mens rea requirement. This will be something to pay attention to when the full judgment is released.

Repealing Same-Sex Marriage in New Hampshire

noreply@blogger.com (Lawrence Friedman) — Thu, 22 Mar 2012 16:21:00 +0000

At this writing, the New Hampshire legislature has rejected an effort to repeal the state’s law allowing same-sex marriage. It’s unlikely that the repeal, should it have been enacted, would have withstood constitutional challenge in any event given the recent decision of the United States Court of Appeals for the Ninth Circuit, which held that California’s voter-initiated repeal of same-sex marriage, known as Proposition 8, failed even the most deferential form of judicial review.

This is because discriminatory laws must be examined in the context of their passage, and the Ninth Circuit found that California had no legitimate basis for taking away the right of same-sex couples to marry when that right had existed without a problem for years and when same-sex couples would continue to enjoy all the same benefits and responsibilities of marriage as opposite-sex couples. Supporters of Proposition 8 argued that the state’s interests in childrearing, responsible procreation, religious freedom, and the content of public school education regarding marriage all provided legitimate bases for eliminating the right of same-sex couples to marry, but they could not demonstrate that the availability of same-sex marriage had actually impaired any of these interests.

A repeal of New Hampshire’s law would have been similarly vulnerable. Following repeal, same-sex couples would have continued to receive all the benefits of marriage, but through civil unions rather than marriage. According to the author of the repeal bill, Representative David Bates, its singular purpose was to “move back, back to the true meaning of marriage.” But, as in California, supporters of the bill would have been hard-pressed to point to any harm created by the availability of same-sex marriage that repeal would have remedied. As the Ninth Circuit reasoned, a law that “operates with no apparent purpose but to impose on gays and lesbians … a majority’s private disapproval of them and their relationships” cannot be deemed valid.

Now, there is one difference between what happened in California and the proposed repeal in New Hampshire. Proposition 8 was a state constitutional amendment, which meant that its opponents would have had to seek another amendment of the state constitution in order to reverse its effect. If the New Hampshire repeal had been enacted, proponents of marriage equality would not have had to seek a constitutional amendment to reinstate the right to same-sex marriage; they would just have had to convince a simple majority of legislators that the repeal was ill-advised and that same-sex marriage should be reinstated.

Because a change in the law through new legislation is nominally easier to achieve than a change through the process of state constitutional amendment, a court might have concluded that a repeal in New Hampshire would not have had quite the same effect as it did in California. But that would not have resolved the question of harm: the state still would have had to come up with some legitimate basis for the repeal—something more, that is, than a mere desire to take away from one group of citizens a civil right they had previously enjoyed.

Lawrence Friedman

Ninth Circuit Concludes Proposition 8 Is Unconstitutional

noreply@blogger.com (Lawrence Friedman) — Thu, 09 Feb 2012 22:48:00 +0000

In Perry v. Brown, released this week, the United States Court of Appeals for the Ninth Circuit upheld a lower court decision concluding that California’s Proposition 8, a voter-initiated amendment eliminating same-sex marriage under the state constitution, violated the U.S. Constitution’s guarantee of equal protection of the laws.

Back when Governor Arnold Schwarzenegger was the defendant, the U.S. District Court found California had no rational basis for depriving same-sex couples the right to marry. The court held a lengthy trial on the matter, allowing for the development of an elaborate factual record; relying upon that record, he concluded the opponents of same-sex marriage had not demonstrated that the marriage discrimination wrought by Proposition 8 had any basis other than an animus against same-sex couples.

The Court of Appeals panel in Perry arguably ruled even more narrowly in its decision: the majority confined its analysis to the question whether a rational basis justified eliminating same-sex couples from eligibility for the status of “marriage,” when that designation had previously been accessible to them under the state constitution, and the amendment did nothing to change the law granting these couples equal access to all the same rights, responsibilities and incidents of marriage possessed by opposite-sex couples. Indeed, the majority took pains to explain what it did not decide—namely, whether under the Fourteenth Amendment same-sex couples enjoy a fundamental right to marry, or whether sexual orientation constitutes a suspect classification.

The Perry holding is narrow because its application is effectively limited to California, where same-sex couples had a state constitutional right to marry that was eliminated by subsequent amendment. It remains an open question whether a state law defining marriage as exclusively between opposite-sex couples violates the Constitution, though several state courts, beginning with the Massachusetts Supreme Judicial Court, have concluded that such laws violate state constitutional equality protections.

Also open is the question whether there is enough here to interest the U.S. Supreme Court. The proponents of Proposition 8 have already said they will appeal the Court of Appeals decision, but the high court may decide it is not ready to address the issue of same-sex marriage in the context of the unique circumstances of California law. Other challenges to same-sex marriage prohibitions are working their way through the federal courts and may present better cases for the Supreme Court to address the issue.

For now, the Court of Appeals decision provides some additional support for the argument that same-sex marriage prohibitions are animated by little more than disapproval of same-sex couples, which may not be sufficient to justify them when the Supreme Court eventually weighs in.

Lawrence Friedman

The Supreme Court Strikes Down Warrantless GPS Monitoring

noreply@blogger.com (Lawrence Friedman) — Thu, 26 Jan 2012 15:34:00 +0000

This week, in United States v. Jones, all the justices of the Supreme Court agreed that the U.S. Constitution precludes the government from monitoring our movements using installed GPS technology absent a warrant supported by probable cause.

But the justices did not agree on the reasoning underlying this decision. The majority, in an opinion written by Justice Antonin Scalia, viewed the vehicle to which the government had surreptitiously attached the GPS device as an “effect.” Accordingly, the use of the device constituted a search within the literal meaning of the Fourth Amendment—that is, it constituted a physical occupation of property by the government for the purpose of obtaining information, which the Fourth Amendment prohibits absent a warrant.

Notably, the majority declined to apply the analysis developed in Katz v. United States to determine whether a constitutional search had occurred. Under the Katz test, a court will inquire whether the government invaded a defendant’s objectively reasonable expectation of privacy. Scalia explained that it was unnecessary to apply the Katz test here, for that test does not preclude “previously recognized protection for property.” In other words, because this case involved an actual physical invasion of property, there was no need to determine whether the defendant had any objectively reasonable expectation of privacy.

Writing for himself and three of his colleagues, Justice Samuel Alito reached the same result applying Katz. The concurring justices concluded that “the use of long[] term GPS monitoring in investigations of most offenses impinges on expectations of privacy,” and by any measure the monitoring in this case—four weeks—could only be considered long-term. Scalia and Alito argued back and forth about whether the Katz test has supplanted property-based determinations of privacy, but it seems clear that Katz will control when, unlike this case, the government’s monitoring does not involve an actual physical invasion of property.

Justice Sonia Sotomayor joined the majority but issued a concurrence that may prove the most interesting—and prescient—of all the opinions in Jones. She agreed that, at a minimum, “[w]hen the Government physically invades personal property to gather information, a search occurs,” regardless whether the defendant has an objectively reasonable expectation of privacy. And she warned against the dangers posed by the ability of the government, via GPS technology, “to assemble data that reveal private aspects of identity,” an ability that could “alter the relationship between citizen and government in a way that is inimical to democratic society.” She urged the courts to take account of these aspects of GPS technology “when considering the existence of a reasonable expectation of privacy in the sum of one’s public movements.”

More importantly, Justice Sotomayor suggested that, in light of the ubiquity of GPS and other similar technologies, perhaps the time has come “to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” Every day we reveal information about ourselves to others that is captured and stored—to our friends, to our family members, to our banks, to on-line service providers like Amazon and Facebook. Simply because we choose to disclose this information in the context of relationships of trust does not mean that the government should automatically have access to it. In the digital age, as Justice Sotomayor put it, Fourth Amendment doctrine should not “treat secrecy as a prerequisite for privacy.”

Lawrence Friedman

George Dargo

noreply@blogger.com (Lawrence Friedman) — Tue, 10 Jan 2012 19:12:00 +0000

At a time when many academics are winding down, my colleague George Dargo, who passed away last week, became enviably prolific.

Before joining the New England Law faculty, back when he was a professor of history, George wrote a number of important books about legal history, including Roots of the Republic: A New Perspective on Early American Constitutionalism (1974), Law in the New Republic: Private Law and the Public Estate (1983), and, in between, Jefferson’s Louisiana: Politics and the Clash of Legal Traditions (1975). Jefferson’s Louisiana has been called “undoubtedly one of the most important studies ever of the Louisiana Purchase and its impact on the politics and legal culture of Louisiana.”

After he joined the New England Law faculty in 1983, George continued writing about legal history; his work in this time included A History of the United States Court of Appeals for the First Circuit (1993), and an article on the famous Sarah Roberts case, which appeared in 1997 in the journal of the Massachusetts Supreme Judicial Court Historical Society.

For nearly a decade thereafter, George focused his energies on the classroom. He taught courses in constitutional law, administrative law, freedom of expression, and law and literature, and he earned a reputation as a superlative classroom teacher. During this time, his writing consisted primarily of sharp letters to the New York Times about events of the day (some more recent examples of which can be found here).

In 2006, I asked George if he would be interested in contributing an article to an issue of the New England Law Review devoted to faculty scholarship. In short order he produced an essay on the Book of Ruth, “Deriving Law from the Biblical Narrative.” It was a gem, and George must have enjoyed the experience of putting it together more than he thought he would because there followed a study—the first by a law professor—of Franz Kafka’s legal writing, “Reclaiming Franz Kafka, Doctor of Jurisprudence” (2007) and a return to the area of his doctoral expertise, the Louisiana Purchase, in “The Digest of 1808: Historical Perspectives” (2009).

And that was not all. With the help of his son, Stephen, George turned his attention to Melville’s famous scrivener, Bartleby, in an interdisciplinary essa y about the connections between law and architecture. And he began work on revising Jefferson’s Louisiana; the new edition would become the centerpiece of a program devoted to his work at the American Association of Law Schools 2010 meeting in New Orleans. Finally, just weeks before his death, George finished From Colony to Empire: Episodes in American History, which will be published in 2012 by the Lawbook Exchange. Episodes collects George’s fugitive legal history pieces, with new introductions and supporting materials.

Nor was George a selfish scholar. He always inquired about my projects and was instrumental in helping me to think through a piece on the Massachusetts Constitution. We spent even more time discussing our shared fondness for Melville: I read his take on Bartleby, he read mine on Billy Budd, we talked often of Ahab’s quest for the white whale.

All of us should be so productive and generous, our writing so thoughtful and polished. We at New England have lost a great comrade and teacher; the world has lost a great scholar.

Lawrence Friedman

Amending the Constitution to Overturn Citizens United

noreply@blogger.com (Lawrence Friedman) — Tue, 03 Jan 2012 20:06:00 +0000

In more than 200 years, the United States Constitution has been amended just twenty-seven times. The primary reason for this is not hard to fathom: it is almost fantastically difficult to amend the Constitution. A proposal must secure the approval of two-thirds of both houses of Congress and three-quarters of the states before we can say the Constitution has been amended. To have a chance, then, any serious proposal must have a great deal of sustained popular support.

One proposal that appears to have that kind of support is an amendment that would overturn the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission, in which a majority of the Court lifted certain restrictions on corporate political speech. As Jeff Clements details in his new book, Corporations Are Not People: Why They Have More Rights Than You Do and What You Can Do About It, the proposed amendment would make clear that the terms “people,” “person” and “citizen” in the Constitution do not include corporations or limited liability companies established here or abroad—thus eliminating the premise underlying Citizens United, that the speech of corporate entities is as valuable under the First Amendment as that of flesh-and-blood human beings.

In the book and his blog, Clement captures the outrage people (actual people, not corporations) feel toward Citizens United. To be fair, there is a plausible First Amendment rationale for the Court’s decision: one goal of the freedom of speech is to promote a diversity of views and wealth of information in the marketplace of ideas. The problem is, that is not the only goal of the Amendment, and that goal is in any event undermined when certain speakers may flood the market with their particular views on a variety of issues.

Further, in its focus on maximizing the amount of speech in the marketplace, the Citizens United court failed to appreciate that only flesh-and-blood humans will suffer the consequences of lawmaking in a tangible way. Corporate interests might, for example, favor the wide use of technologies that can track our activities, such as automobile smart passes and GPS software, and speak through contributions to officials who would adopt these technologies. But no corporate entity will ever have to deal with any of the real-world consequences of that adoption, such as the potential for undermining individual privacy interests.

Perhaps more critically, Citizens United is wrongheaded because it suggests that the product of thought—the ideas that end up in the marketplace—is somehow disconnected from its source. If the premise of Citizens United is correct, whether speech is generated by humans, corporate public relations flacks, or a computer programmed to spit out random policy proposals, makes no difference—it’s all the same. But that can’t be right: humans have an inherent dignity that neither corporations nor computers possess, and the notion that their speech is worth the same as ours ultimately demeans us in a fundamental way.

Lawrence Friedman

The Slippery Slope is Here!

noreply@blogger.com (Victor Hansen) — Thu, 01 Dec 2011 22:27:00 +0000

One of the primary criticisms of trying terrorists by military commission is the slippery slope which exists in a system not founded on sound legal principles. Proponents of military commissions have argued we needed this separate system to address unique issues involved with trying suspected enemy terrorists, and by creating a separate system we prevent the individual rights protections that apply in Article III prosecutions from being diluted. This is because military commissions are limited to trying non-U.S. citizen “unprivileged belligerents.”

One of the key flaws of this argument is that the Military Commission Act’s limitation on trying only non-U.S. citizens by military commission was not based on any clear legal principle, and nothing would prevent the jurisdiction of these commissions from expanding in the future. Over the past several weeks, the Senate Armed Services Committee has been toying with an amendment to the National Defense Authorization Act (NDAA) which will push us down this slope.

Among other things, the proposed amendments create a presumption of military detention in certain cases, even when the detainee is a U.S. citizen. And, of course, because the military is not in the business of operating prisons throughout the country, the most likely place for that detention would be Guantanamo. These proposed amendments, coupled with already existing legislation, could result in a suspect—even a U.S. citizen—being detained by the military, sent to Guantanamo and then never able to be tried in an Article III court in the United States.

Welcome the slippery slope.

Interestingly the amendment has enjoyed bi-partisan support in the in the Senate Armed Services Committee. In an op-ed in the Washington Post Senator Levin and Senator McCain recently argued that the proposed amendments are not likely to have much if any impact on current procedures and the legislation gives the President the authority to opt out of the military detention option in a particular case if certain criteria are met. That argument, even if true, does not address the underlying issue: why should military detention be the default option in these cases to begin with?

Is it because the military has proven to be more capable in effectively detaining terrorists or others in the past? The sad history of abuses that occurred at Abu Ghraib and Guantanamo clearly show the fallacy of that proposition. Is it because the military has proven to be more efficient and effective at trying terrorist suspects? Here again, the long and sad history of the military commissions process and the utter inability of the commissions to effectively, fairly and efficiently try suspected terrorists belies any claim that this is a better format for these trials.

The fact is that the military’s job is to fight and win wars—not to act as the primary governmental institution authorized to detain and try terrorist suspects.

It seems likely that efforts by the Senate Armed Services Committee to add these detainee amendments to the NDAA have much more to do with politics and demagoguery than with legitimate national security concerns. And because these proposed amendments put us clearly on the slippery slope, we are all the worse for it.

America Needs Harry Truman

noreply@blogger.com (Victor Hansen) — Fri, 23 Sep 2011 14:45:00 +0000

In a new book, Top Secret America, Washington Post reporters Dana Priest and William Arkin tell the story of the rise of the American security state following the terrorist attacks on 9/11. The authors detail the vast security apparatus developed by an alphabet soup of federal agencies. The thesis of the book is twofold. First, the authors explain, with numerous examples, how this security apparatus developed with little if any oversight, coordination or attempt to assess whether the new security state would better protect us from terrorist attacks. A second theme is that much of this security apparatus is being used not to fight terrorism, but to combat ordinary crime. The extremely sophisticated technologies that state and local law enforcement agencies now routinely use, make the thermal imaging device at issue in Kyllo v. United States seem like ancient technology.

In this era of endless budget battles and a competition between the major political parties as to which can show better fiscal restraint and responsibility, it is striking how little either party, particularly in Congress, is willing to question the need for such a vast and expensive security apparatus. The hesitancy of politicians of either stripe to question these programs is obvious: no politician wants to be seen as soft on terror or unwilling to do everything necessary to protect citizens. Hence, there has been virtually no effort in Congress to assert meaningful oversight of these programs, or even to become educated as to what programs actually exist. In one interview, the authors quote a senior Department of Defense official who says that only God knows the extent of the government’s security programs.

While Congress’ unwillingness to provide meaningful oversight is understandable, it is not excusable. There is, in fact, very strong precedent for Congress to perform necessary oversight and question the effectiveness and usefulness of important government programs even in time of war.

At the beginning of World War II Congress created a committee to investigate the nation’s defense program. The committee was headed by then Senator Harry Truman. Over the course of the next several years, Senator Truman’s committee held numerous public hearings, conducted investigations into defense spending programs, and visited countless military bases and factories. The Truman Committee became a powerful watchdog against fraud, waste and abuse. That committee is credited with saving the government billions of dollars, eliminating wasteful programs and saving American lives. All this, while the U.S. was fighting major wars on two fronts on opposite sides of the world. Where is the modern day Truman Commission?

Privacy Harms Under Massachusetts Law

noreply@blogger.com (Lawrence Friedman) — Tue, 06 Sep 2011 15:52:00 +0000

Last month, the Massachusetts Appeals Court decided Amato v. District Attorney, a case involving privacy and DNA. The plaintiff was one of many men who voluntarily submitted a DNA sample to prosecutors in connection with a murder investigation. Following the completion of that investigation, the indictment and conviction of another individual, and the exhaustion of the appellate process, the plaintiff sought confirmation that, as prosecutors had promised him, his DNA sample had been destroyed. He received no such confirmation; in fact, a representative of the state crime lab stated that the lab continued to hold all the voluntarily-submitted DNA samples associated with that case.

In his class action suit, the plaintiff claimed the defendant had violated two Massachusetts laws, the Fair Information Practices Act (FIPA) and the statutory protection against privacy invasions. In addition, he argued that the defendants had breached a promise made by investigating detectives and the district attorney that his DNA sample would not be retained.

The trial court dismissed the plaintiff’s claims and the Appeals Court reversed. Regarding the scope of FIPA, the court held that, as the statutory text indicates, government agencies may not collect or maintain more personal data than reasonably necessary in connection with their legal functions; an agency that violates this rule may be subject to an action for equitable relief. In this case, the court concluded the plaintiff’s allegations sufficed to show the defendants kept more of his personal data than reasonably necessary—after all, the criminal investigation had ended and the appellate process had run its course.

As for the invasion of privacy claim, the Appeals Court noted that, under the statute, an individual has the right to be free from unreasonable, substantial and serious interference with privacy, and the trial court has the equitable power to enforce this right. The court agreed that the DNA information at issue should be considered highly sensitive, and the allegation that the defendants retained this information without the plaintiff’s consent, and made it available for use in other criminal investigations, sufficed to show the retention was unreasonable.

Finally, the Appeals Court held that the investigating detectives had made an enforceable promise to the plaintiff when they solicited a DNA sample from him, which they broke, thereby creating an actionable claim for breach of contract.

And so the court remanded for further proceedings, and we are left with a decision that stands as a rare vindication of privacy interests. To be sure, victory depended upon the existence of statutory rules governing the collection and maintenance of private information, a statutory protection of privacy interests, and particularly egregious facts. At the same time, the decision gives us some sense of the kind of privacy harm that will be actionable.

The understanding of privacy harm embraced by the Amato court may have some utility for individuals seeking to pursue privacy violations in other contexts. One of the most difficult issues confronting plaintiffs who claim a privacy violation is the way the harm should be characterized. It is not the same as physical harm, which can be quantified and measured. And, under statutes that require a showing of actual harm, it may be difficult to demonstrate that a loss of control over personal information caused an injury.

In contrast, the Amato court’s reasoning indicates that the presence of certain factors will point to the existence of an injury which is subject to remedy. Consider that, while the court recognized data collection and maintenance may be reasonably necessary, such necessity does not extend indefinitely into the future. For example, in the context of a criminal case, when the investigation has ceased, and certainly when a conviction has been upheld, it is no longer necessary to retain information that is not relevant to the case. At the point in time when consensually-submitted personal information ceases to be relevant to a government function, control over that information essentially reverts back to the individual and the continued retention of it amounts to unreasonable interference with privacy—that is, an actionable injury.

This injury existed, moreover, even absent evidence that the privacy violator made use of the personal information at issue. In other words, the Appeals Court in Amato concluded that the merely holding this information without the information-owner’s consent stated a claim for relief.

This kind of analyis suggests that, at least under Massachusetts law, the default position is individual control over personal information, and the loss of that control without appropriate justification must be regarded as a particularized harm, one which the courts have the power to remedy.

Lawrence Friedman

Trying Former Soldiers in Federal Court

noreply@blogger.com (Victor Hansen) — Tue, 30 Aug 2011 20:10:00 +0000

The Sixth Circuit Court of Appeals recently affirmed the conviction of a former Army Private, Steven D. Green, for sexual assault and the murder of four Iraqi civilians in 2006. What makes this case unique is that Green was tried in federal district court rather than in a military court-martial. By the time Army officials became aware of the allegations against Green, the military had discharged him from the service. Court-martial jurisdiction is based on the status of the soldier at the time of the offense and at the time of trial. Because Green was no longer a member of the military at the time the Army discovered the allegations, court-martial jurisdiction no longer existed.

Prior to 2000, this situation created a jurisdictional gap whereby former service members could avoid criminal prosecution for acts they committed but were not discovered before they were discharged. In 2000, Congress passed the Military Extraterritorial Jurisdiction Act (MEJA) to close that gap. Under MEJA, the U.S. Government may prosecute former soldiers for crimes they committed outside the special territorial and maritime jurisdiction of the United States while they were members of the military. Prosecutions under MEJA have been rare, and the case against Steven Green represents one of the few times federal authorities have used the statute.

Use of MEJA to prosecute former service members for crimes committed outside of U.S. territory raise several constitutional issues. The Sixth Circuit opinion in Green addresses a number of these issues, including Green’s contention that MEJA violates separation of powers. Green contended that MEJA violates this principle because it expands the executive’s power to enforce the law by expanding its jurisdiction. The Sixth Circuit rejected this argument. The court agreed that MEJA represents an expansion of executive authority, but that expansion does not come at the expense of another branch of government. Accordingly MEJA is no different than any other federal law that increases the categories of criminal conduct.

This holding is interesting in light of the ongoing debate over whether terrorist suspects should be tried in federal court or in military commissions. Those who have argued for trial in military commissions assert that federal courts lack the necessary tools to handle these cases and, therefore, a special and separate system of adjudication is needed. Cases like Green suggest the opposite. According to the Sixth Circuit’s decision in Green, Congress can in fact provide the executive with the authority to try problematic cases in federal courts, and, if this decision is any indication, courts are likely to give significant deference to those congressional grants of authority.

Medicating to Competency: Procedure or Substance?

noreply@blogger.com (Lawrence Friedman) — Tue, 19 Jul 2011 19:00:00 +0000

What can the Government do to try a severely mentally ill person? Jared Lee Loughner, charged with killing six people, including a federal judge, and wounding others, including Congresswoman Gabrielle Giffords, is undeniably severely mentally ill and his mental state in the shooting will be the principal issue at any trial. No defendant can be tried unless he is mentally competent to stand trial, and within weeks of obtaining the 49 count indictment for capital murder, attempted assassination of a Congressperson, several other attempted murders and dozens of potentially lethal assaults and weapons crimes, the Government sought to have Loughner’s competence to stand trial evaluated. Whether Loughner can ever be tried will depend upon the legal framework the Court adopts for his case – which may answer the question whether the Government can force a person to become competent for the express purpose of seeking his conviction and possible execution.

Severely mentally ill people pose a tremendous, and growing, problem for the criminal justice system, comprising an estimated 16% of adult state prison inmates and jail detainees according to a 1999 US Justice Department Study. When convicted and imprisoned, seriously mentally ill inmates may be treated – even against their will – if they present a danger to themselves or others because of their mental illness. The US Supreme Court confirmed in Washington v. Harper, that a prison’s interest in security and safety was paramount, and permitted involuntary medication of a seriously mentally ill inmate when treatment is in his medical interest. The required process was an administrative, rather than judicial, proceeding before physicians without a right to counsel for the inmate.

On March 21, US District Judge Larry Alan Burns sent Loughner to a US Bureau of Prisons “Medical Referral Center” in Springfield, Missouri for evaluation of his competence to stand trial, and even the Government’s experts soon concluded he is not competent, because of his schizophrenia and – significant for analysis under Harper – that he posed a danger even within a secure mental facility. Government mental health professionals concluded psychoactive drugs are medically appropriate so, given Harper, it would seem he could be medicated, with or without his consent. BOP staff began medication in mid-June.

But medication of a seriously mentally ill inmate to reduce his dangerousness isn’t legally the same as medication to render a defendant competent to stand trial. Loughner isn’t a prison inmate yet – he’s a pretrial detainee, so there are other considerations relating to his being involuntarily medicated. These, under a different legal framework the Supreme Court set out in Sell v. US, need to be assessed by a judge – not by doctors. These require (1) important governmental interests at stake, (2) that involuntary medication will significantly further, considering any less intrusive measures, (3) which medication is necessary to further these interests, and (4) that drugs are medically appropriate.

That’s why on July 14 the Ninth Circuit Court of Appeals ordered a halt to involuntary medication and briefing on the appropriateness of involuntary medication. This appellate dispute will focus on whether the medication decision can be made a doctor, after a limited administrative hearing, or must be made by a judge, after a full adversarial proceeding. But underlying this question is whether Loughner will be considered first and foremost a dangerous inmate needing drugs to reduce his dangerousness, or a criminal defendant, charged with capital crimes, whose interests in decision-making about his case require greater process to protect. And underlying these process questions lays the ultimate question: how far may the Government go to try someone?

David Siegel

Misunderstanding the Governor’s Power to Appoint Judges Under the Massachusetts Constitution

noreply@blogger.com (Lawrence Friedman) — Mon, 18 Jul 2011 17:00:00 +0000

As reported in the Boston Globe last week, the justices of the Massachusetts Supreme Judicial Court asked Governor Deval Patrick for a moratorium on judicial appointments. The recent budget cuts have severely undermined the ability of the courts to administer justice in the Commonwealth, and, as Associate Justice Robert J. Cordy put it, the system “can’t even support the judges we have in our courts now.”

The reaction from the Governor’s office was defensive and critical. The governor’s legal counsel, Mark Reilly, admonished the SJC for “this attempt to constrain the governor’s constitutional authority,” while Lieutenant Governor Timothy P. Murray stated that, despite the request by the justices, the governor would continue to make judicial appointments.

The Governor’s representatives—and perhaps the Governor himself—appear to be laboring under a misunderstanding about exactly what authority the Massachusetts Constitution provides the executive when it comes to judicial appointments.

Under the Massachusetts Constitution, the governor has the power to nominate and to appoint all judicial officers, with the advice and consent of the council. Importantly, nowhere does the constitution say that the governor is obligated to appoint judges when positions are vacant; rather, the constitution simply makes clear that the governor has the authority to fill vacancies in his discretion.

What this means, of course, is that the governor may choose not to use this authority, and to leave some judicial positions empty. The justices of the SJC were asking the governor to do just that, and for good reason: it makes no sense to fill judicial vacancies when the Massachusetts court system is in a state of fiscal crisis.

As recently reported, the court system’s funding has been reduced by 16 percent in the past three years. The system has lost more than a thousand employees in that time and now is faced with the prospect of shuttering almost a dozen courthouses in order to operate within its budget. Each new trial judge appointed will result in the court system laying off three staff members.

Neither the legislature nor the governor appears to recognize that the court system is not just another state agency. Rather, it is a co-equal branch of government charged with constitutionally-mandated tasks—namely, “the impartial interpretation of the laws, and administration of justice.” When the ability of courts to perform these core functions is severely threatened, the judiciary is not without recourse: it has long been understood that, as a constitutional matter and in appropriate circumstances, the courts have the power to prevent the impairment of their core functions due to inadequate facilities or resources.

At the moment, that power remains untouched. It is understandably a last resort, and the request that the governor suspend judicial appointments until the crisis has been resolved can be seen as an effort by the SJC to ensure that it remains a last resort. That the governor views this reasonable request as a threat to his authority to make judicial appointments is not just legally mistaken, it is short-sighted. Now is the time when the governor should be leading the effort to resolve the funding crisis, so that sooner rather than later he can resume making judicial appointments without further undermining an already overburdened court system.

Lawrence Friedman

Roger Clemens, Casey Anthony, and the (Antiquated?) Notion of the Special Role of Prosecutors

noreply@blogger.com (Louis Schulze) — Fri, 15 Jul 2011 20:27:00 +0000

In the wake of several high-profile criminal trials, a whole lot of Monday morning quarterbacking is going on. Talking-heads are lambasting the lawyers in the Casey Anthony trial, and sports radio personalities are speculating that Major League Baseball covertly paid off Justice Department lawyers to tank the case against Roger Clemens.

As a former prosecutor, I know that the vast majority of such criticism is issued by “experts” who lack sufficient knowledge of the circumstances to judge. Therefore, I do not mean in this post to add my opinion to this growing pile of speculation, bombast, and preening. But, I fear that a public perception seems to be developing as a result of these incidents that prosecutors are nothing more than hired guns employed by the government, and their alleged role (to win at all costs) is indistinguishable from that of any other lawyer in the justice system.

Such a public perception is a terrible shame, and it’s time to remind the public and prosecutors of exactly what prosecutors ought to be.

I vividly remember the first lesson taught in my month-long orientation when I became a prosecutor. The First Assistant State Attorney recounted for us the mantra of Attorney General Janet Reno who, until just a few years before my start-date, had served as the State Attorney for the jurisdiction in which I served. That mantra was: “Our first goal as prosecutors is to ensure that the innocent are never prosecuted, and our second goal is to ensure that the guilty are punished to the full extent that they deserve punishment.”

That message stuck with me even when it became clear that a few of my colleagues, and even some supervisors, hadn’t fully digested the import of those words. But, I was lucky to have “grown up” as a prosecutor observing some of the most forthright lawyers I would ever meet. From them, I gleaned the nature of the special role of prosecutors.

Being a prosecutor means being the lawyer who is always in the right. By that, I don’t mean that the accused is always guilty or that defense attorneys are always in the wrong. Far from it. Instead, I mean that the special role of the prosecutor in our justice system is defined by the fact that prosecutors can choose their own cases. If they cannot prove their case beyond a reasonable doubt, they can (and must) drop it. As a result, until the day of trial, prosecutors must objectively assess the evidence against the accused with an eye toward ensuring that, come trial day, they are sure they are advocating on the side of justice. That is a unique and liberating role for a lawyer to fill.

Being a prosecutor also means conducting oneself in a way that demonstrates objectivity and respect, even to those who might not deserve it. Atticus Finch was a criminal defense attorney, but he serves ably as a role model for prosecutors: completely unassailable in terms of credibility, veracity, and dignity. I remember once watching a trial conducted by a legendary capital prosecutor in my office, who I respected deeply. As the jury was being led to lunch and the defense witness was getting up to stretch his legs, the prosecutor and the witness nearly bumped into one another. The witness gave the prosecutor a malevolent glance, while the prosecutor concurrently and spontaneously said “Oh, pardon me, Sir.” I happened to see that two of the jurors, waiting to exit the jury box, witnessed the incident, commented to each other quietly about it, and seemed to recognize the dignity the prosecutor accorded to the man who clearly saw him as an enemy. That reaction gained the prosecutor credibility with the jurors because they could tell that his advocacy was not fueled by personal animosity but by a genuine, detached search for justice.

By contrast, just about everyone with a television recently witnessed a prosecutor laughing openly in a court of law, blatantly and disrespectfully mocking the closing argument of defense counsel in the Casey Anthony prosecution. Just yesterday, the nation learned that the federal judge assigned to the Roger Clemens trial severely upbraided federal prosecutors for repeatedly violating pre-trial orders and making errors that “even a first year law student” would know not to make. Prosecutors, like all other attorneys, are humans who may make mistakes and should be accorded a degree of leniency for excusable gaffes, especially newer lawyers. Nonetheless, intentional or mean-spirited malfeasance, especially at the hands of seasoned veterans, constitutes conduct utterly unacceptable for a lawyer representing the People, the State, the Commonwealth, or the United States of America.

Most prosecutors serve in their roles admirably. But, these latest examples of prosecutorial conduct should serve as object-lessons by which to teach young prosecutors that their role in the justice system is unique. Their responsibility to objectivity transcends the innate tendency to compete for the sake of competition.

In short, prosecutors have no client other than justice. This ideal should be paramount.

Privacy v. Free Speech in Florida

noreply@blogger.com (Lawrence Friedman) — Tue, 05 Jul 2011 19:42:00 +0000

With a majority of the U.S. Supreme Court in recent years supporting a robust understanding of the First Amendment’s protection of the freedom of expression, it’s interesting to see that some state legislatures remain unbowed. In the term just ended, for example, the Court struck down state regulations limiting the sale of violent video games to children, as well efforts to publicly fund election campaigns and to prevent data mining of physician prescription records.

And now comes Florida and its new law aimed at protecting the privacy of firearm owners. Signed into law last month by Governor Rick Scott, the law prohibits physicians from inquiring of their patients about such matters as “the ownership of a firearm or ammunition by the patient or by a family member of the patient,” or “the presence of a firearm in a private home or other domicile of the patient or a family member of the patient.” (An exception may be made if the doctor “in good faith believes the information is relevant to a patient’s medical care or safety, or the safety of others.”)

In addition, the law prohibits doctors from entering into a patient’s medical records information about the subject of gun ownership, if that information “is not relevant to the patient’s medical care or safety, or the safety of others,” and it prohibits doctors from “unnecessarily harassing” patients in the subject of “firearm ownership.” Violations of these provisions may expose a physician potentially to revocation of the license to practice, administrative fines in the thousands of dollars, and letters of reprimand.

Unsurprisingly, this law is vulnerable to a First Amendment challenge—and it has already been challenged by several physicians and medical organizations. The prohibition is an express, content-based restriction on the speech of qualified medical professionals seeking to make determinations within their realm of expertise about how best to care for their patients. The critical question will be whether the state can assert an interest sufficiently compelling to justify the speech prohibition.

The U.S. Supreme Court’s decision last month in a case called Sorrell v. IMS Health may be particularly instructive on this question. Sorrell concerned a Vermont law enacted to restrict the sale, disclosure, and use of pharmacy records that revealed the prescription practices of individual doctors. The Court concluded that, because the state allowed such records to be made available for other reasons, the law discriminated against certain speakers—namely, the data miners who sought the prescription record information for commercial purposes. Among the interests the state asserted as justifying the law was the privacy of the doctor-patient relationship, but the Court was unconvinced that the restriction sufficiently promoted this interest.

In light of Sorrell, it’s not clear that protecting the privacy of firearm owners would be deemed so important as to convince a court to uphold the Florida law. The expression the Sorrell Court deemed protected was commercial speech, traditionally subject to broader regulation than other forms of expression. If privacy was not a sufficient justification for restricting commercial speech, it is probably not a sufficient justification for restricting speech, like a doctor’s legitimate medical inquiries, that traditionally has received more protection under the First Amendment.

This is not to say that privacy is not an important value. But many cases involving constitutionally protected individual rights present a choice between competing and important interests, and it falls to the courts to determine which interest should prevail in a given instance. As recent cases have demonstrated, the Roberts Court almost always values free speech over other interests. Whether the Court will someday encounter an obstacle on its free speech campaign remains to be seen, but it is not likely to be the Florida law protecting the privacy of firearms owners.

Lawrence Friedman

Libya and the War Powers Act

noreply@blogger.com (Lawrence Friedman) — Fri, 24 Jun 2011 19:41:00 +0000

In a recent post, my colleague George Dargo suggested that the Obama administration has no reason not to comply with the terms of the War Powers Act regarding our support of NATO forced in Libya. One of the members of the Obama administration who has argued that the War Powers Act does not apply is Harold Koh, the Legal Advisor to the State Department. He recently addressed an audience of international law and law of war experts at the annual International Law Conference, hosted by the U.S. Naval War College.

Mr. Koh sought to highlight ways in which the Obama administration’s approach to many of these issues fundamentally differed from his predecessor. Among the topics discussed was congressional authorization for U.S. military involvement and support for rebels in Libya who are seeking to topple the Gaddafi regime. The War Powers Act requires the President to seek congressional authorization for U.S. forces engaged in hostilities for more than 60 days. The Obama administration has been under pressure from some members of Congress to seek this authorization for continued military action. The administration’s position is that the War Powers Act does not apply because the nature of our military involvement does not rise to the level of “hostilities” as defined by the War Powers Act.

Mr. Koh repeated that assertion in his address. In addition, he made the following points:

- The military involvement in Libya is not the kind of military action that Congress contemplated when it passed the War Powers Act.
- If Congress wants to prevent the President from supporting the rebel forces in Libya, then Congress must take some affirmative action.
- If Congress decides to withdraw U.S. military support for the rebels, then it should do so with the understanding that it is giving Colonel Gaddafi the green light to resume the slaughter of his own citizens.

The War Powers Act is certainly fraught with problems, not the least of which it that it requires the President to remove U.S. forces from hostilities unless Congress takes some affirmative action authorizing their continued participation. Mr. Koh, however, repeated several times that the Obama administration was not challenging the constitutionality of the War Powers Act; it was simply arguing, primarily for policy reasons, that the Act does not apply to the situation in Libya.

Mr. Koh might have been seeking to convince the audience that, because the administration was not attacking the constitutionality of the War Powers Act, its view of presidential power is more limited than Mr. Obama’s predecessor. I am not sure that is the case.

First, claiming that the President does not have to seek Congressional authorization and that, if Congress wants to prevent the President from committing military support to NATO’s effort in Libya, then Congress must take some affirmative step turns the law on its head. One of the primary purposes of the War Powers Act was to prevent the President from committing military forces and then escalating that commitment over time without congressional approval. Recognizing that the President should have some leeway, Congress gave the President a 60 day window to commit forces into hostilities, and then make the case to Congress at the end of the 60 days why those forces should remain engaged in hostilities. Mr. Koh ignores this very fundamental purpose of the War Powers Act when he claims that the situation is Libya is not the kind of military engagement contemplated by the War Powers Act. The President’s actions seem to be exactly what Congress was concerned about when it passed the Act.

Even more interesting and, perhaps, more troubling is Mr. Koh’s policy assertion that if U.S. forces were to disengage from Libya, then Colonel Gaddafi would be able to resume killing his own citizens. This may well be true, but it is hardly a reason why the President can ignore the legal requirement to seek congressional authorization. In essence, Mr. Koh claims that the President can ignore the requirements of the statute if the President believes that compliance would frustrate important policy objectives. This view of presidential power is not so different than the arguments made by the Bush administration lawyers that the President did not have to comply with the requirements of the Foreign Intelligence Surveillance Act (FISA) because FISA interfered with his Article II powers as commander-in-chief.

While Mr. Koh’s argument may be subtler, it may also be more disingenuous. At least the Bush administration lawyers openly asserted that, in certain matters of national security, the President had the authority to ignore laws passed by Congress. The Obama administration seems to me making that same argument under the guise of statutory interpretation.

Victor Hansen

Turner v. Rogers: A Basis for Cautious Optimism Despite the Opinion’s Flaws

noreply@blogger.com (Lawrence Friedman) — Wed, 22 Jun 2011 19:48:00 +0000

From an Access to Justice and Civil Right to Counsel perspective, the Supreme Court’s decision in Turner v. Rogers provides a basis for cautious optimism despite the opinion’s flaws. It is unsurprising that the Court would decline to find a categorical right to counsel in a fact pattern it viewed as an extension of settled law. Yet, the Court’s actual holding found that Mr. Turner’s due process rights were violated because he “received neither counsel nor the benefit of alternative procedures like those we have described.” Any notion of a civil right to counsel invariably will require some difficult line-drawing. No proponent of such a right claims that all indigent litigants in all civil proceedings are entitled to counsel at the state’s expense.

Many of us recognize that the right to counsel should be viewed as a component of an overarching access to justice strategy. I find it helpful to think of a three-pronged strategy. Prong 1 requires the courts to re-envision their procedures, and the roles of the judges, court-connected mediators to maximize the provision of meaningful access to justice. Prong 2 urges the support of a variety of forms of assistance short of full representation by counsel, paired with careful evaluation of case outcomes to help determine which forms of assistance are sufficient to provide the help needed, and which are not. Prong 3 supports the expansion of a civil right to counsel, where basic human needs are at stake and nothing short of full representation with provide the needed assistance.

Viewed this way, the right to counsel is inevitably tied not only to the rights at issue, but the procedures in place. The more the courts provide meaningful access, and assistance programs are proven to be effective, the smaller the pool of cases in need of counsel may be. The more that procedures deprive litigants of meaningful access and steamroll their claims, the more that appointment of counsel may be required. The Court’s approach is not inconsistent with the idea that the procedures matter in assessing the need for counsel.

So too does the complexity of the case. The Court found the child support cases here to be “sufficiently straightforward,” suggesting a different result as the claims get more complex. The Court adds to the calculus that the opposing party here was unrepresented by counsel. It is not necessarily antithetical to the call for an expanded civil right to counsel to consider the capabilities and circumstances of both parties, suggesting a different result in some settings where the opposing party is a well-funded represented party as opposed to an indigent, unrepresented one. The greater the imbalance of power between the parties, the greater the need for counsel will be.

None of this is to ignore the Court’s pronouncements that might instead set the march toward increased Access to Justice and an expanded Civil Right to Counsel backward. It is disappointing that the Court would characterize (in dicta) its jurisprudence as holding that the right to counsel under federal law exists “’only’ in cases involving incarceration.” Lassiter itself contemplated the possibility of counsel being constitutionally required in cases concerning the termination of parental rights.

The Court disappoints further by relying so heavily on the distinction between criminal and civil and its perceived role of the state. If our courts are to respond to the needs of the public who must turn to the courts – or are forced by others to appear in court – where basic human needs are at stake, we cannot continue to rely on mechanical distinctions that fail to comport with our values and our sense of fairness. If incarceration resulting from civil contempt might lead to a longer imprisonment than incarceration resulting from criminal contempt, it is small solace to those in peril of losing their liberty that their right to counsel turns entirely on the civil/criminal distinction. Moreover, most parents would prefer to serve thirty days in jail than lose custody of their children in a private custody dispute or have their families rendered homeless through eviction, yet the mechanical application of the criminal/civil distinction prioritizes the lesser harm for access to counsel.

Nor should we be comforted by the Court’s reliance on the distinction between cases brought by the State and those brought by private parties. The Court saves for another day the question of contempt proceedings for child support payments owed to the state, but the deprivation of liberty applies equally to defendants owing money to the state or someone else. Homeless families will find little solace in the realization that they were rendered homeless in proceedings in which the government was the landlord, as opposed to a private landlord, including one that might receive government subsidies. In the area of child custody, in the words of one state supreme court justice, a parent is deprived of the care, custody, companionship, and control of the children whether the State takes custody through termination or dependency proceedings or her former husband does through private litigation. The State plays too large a role in regulating the legal relationships and establishing the processes for enforcing our basic rights to hide behind such a distinction.

In the long run, the impact of the Turner decision will be less about its language and more about its application at the state and local level. If the disappointing portions of Turner lead states to roll back their existing provisions for counsel by declaring their procedures sufficient under Turner, or if what is meant by adequate procedures is little more than a rubber stamp, the decision will prove to be a devastating one indeed. If, instead, the decision prompts state courts, legislatures, access to justice commissions and bar associations to engage in a careful examination of the procedures where basic human needs are at stake, and provide counsel where the procedures are lacking, the law is complex or the litigants are on the wrong side of a power imbalance, the decision might prove to be the touchstone for reforms that further access to justice and lead to an expansion of a civil right to counsel.

Russell Engler

The War Powers Debate: Is the U.S. Engaged in “Hostilities” in Libya?

noreply@blogger.com (Lawrence Friedman) — Wed, 22 Jun 2011 19:35:00 +0000

How many angels can dance on the head of a pin? When does the use of the armed forces of the United States trigger the War Powers Resolution of 1973? Why have we not intervened in "hostilities" within the meaning of that resolution with our military operations in Libya?

Learned counsel for the State Department and the White House appear to know the answers to such questions with reasons that would make medieval scholastics blush with embarrassment.

There are no caveats in the War Powers Resolution. The words are perfectly clear -- certainly clear enough for a former lecturer in constitutional law -- or even for a former dean of the Yale Law School -- to be able to comprehend and apply in the manner that Congress intended.

George Dargo

Should We Abolish the Estate Tax?

noreply@blogger.com (Kent Schenkel) — Fri, 10 Jun 2011 17:24:00 +0000

Here’s a simple yes or no question: Do you personally favor or oppose completely eliminating the estate tax—that is the tax on property left by people who die?

After you have answered that question consider this. Suppose you receive an unexpected call from a lawyer who tells you that she represents the estate of your great Aunt Leona, who recently died. She goes on to tell you that, in her will, Aunt Leona left you a bequest of $100,000 in cash. Do you think you would you be required to pay federal income taxes on that amount?

When I ask my new tax students this question most assume that federal income taxes would be owed. But most students' assumptions are wrong, because under federal income tax law property received by bequest or inheritance (and even that received by gift) is excluded from the definition of income. So you would get the whole $100,000, free and clear of federal income taxes.

What about federal “death” taxes? Federal law does include what is known as an “estate tax,” which is a tax on the aggregate value of everything a person owned at death. Would that tax reduce the amount you received from Aunt Leona’s estate? No, because that tax is paid by the decedent’s estate after her death. You would receive your bequest in full after the payment of any federal estate tax that was due. But chances are overwhelmingly good that Aunt Leona’s estate would owe no federal estate tax anyway. The tax has for many years applied to only a very small fraction of estates. And that fraction keeps getting smaller.

In keeping with this trend, late last year, Congress passed, and the President signed, a law under which no federal estate tax is owed unless the estate exceeds $5 million in total value, less any substantial gifts made during lifetime. Decedents can also leave an unlimited amount to their surviving spouses without any estate tax becoming due. Those spouses can then generally leave up to $10 million in assets to the next generation without their estates being liable for any federal estate tax.

To put this in perspective, in 2007 there were probably no more than 600,000 total households in the U.S. with a net worth in excess of $10 million. Based on today’s total U.S. population of about 308 million people, this means that far less than 1% of the U.S. population will be exposed to this tax. Although the 2010 law is more generous than most prior laws in exempting wealth from the estate tax, the federal estate tax has for many years affected only 2% or less of estates.

Consider again the question posed at the beginning of this post—do you favor or oppose the complete elimination of the estate tax? In annual polls commissioned by the Tax Foundation and conducted by Harris Interactive in 2006-2007, 66%-68% of people favored completely eliminating the estate tax altogether when that question was posed exactly as stated in the first sentence of this post. Note how this poll question, given by an organization that describes itself as “a nonpartisan tax research group,” was phrased as all-or-nothing: the “complete elimination” of the estate tax.

Consider some more data. In 2010, Michael Norton of Duke University and Dan Ariely of Harvard Business School devised a survey wherein they asked a “nationally representative online panel to estimate the current distribution of wealth in the United States and to ‘build a better America’ by constructing distributions with their ideal level of inequality.” The results: most of those surveyed vastly underestimated the actual percentage of wealth owned by the top 20% of Americans—those surveyed guessed it was 60% when in reality it’s 85%. The survey takers estimated that the poorest 40% of the population owned about 10% of the country’s total wealth. The real number is three-tenths of 1%. Perhaps even more striking, over 90% of those surveyed (including Republicans) preferred wealth distribution like that of Sweden (35% of wealth owned by the top 20%) over the U.S. when asked which type of wealth distribution they would deem most just.

A common argument in favor of estate tax elimination is that it amounts to a “double-tax.” In other words, income is taxed to the recipient, and then when the recipient dies that income, now in the form of wealth, is taxed again by the estate tax. But there are at least three counterarguments here.

First, the person who “earned” the property (and presumably paid tax on it) is now dead, and the heir (the new owner) paid no tax. The money you received from Aunt Leona’s estate is no longer Aunt Leona’s, it’s now yours, and this is why so many people automatically assume that it is subject to the income tax. In fact, under the tax law’s general definition of income as all “accessions to wealth” it would be taxed if it were not for a specific exclusion written into the Internal Revenue Code for gifts and bequests.

Second, studies have shown that some 56% of estates of over $10 million consist of unrealized capital gains. This means that even the dead person paid no income tax ever on over one-half of what he is passing on. To give this some context let’s assume, for example, that Aunt Leona had left you a painting she bought for $100 that was now worth $100,000. She may have paid tax on the $100 she earned to buy the painting but would never have paid tax on the $99,900 in appreciation.

Finally, other income tax rules provide that the recipient can sell almost any property inherited at the value it was when inherited and pay no tax on the proceeds. In other words, when you sell Aunt Leona’s painting for $100,000, you can pocket the sales price free of tax.

So rules governing taxation at death are complex, but generally pretty favorable to the taxpayer. This brings us back to the question that we started with. Do you favor the complete elimination of the estate tax? Or does the question need context and the answer call for nuance?

Kent Schenkel

iProfile

noreply@blogger.com (Lawrence Friedman) — Wed, 08 Jun 2011 20:20:00 +0000

In April, researchers discovered that the latest generation of iPhones had the capability to keep a minute-by-minute log of everywhere you go. iPhone users were understandably outraged. In a column about the issu e, New York Times technology writer David Pogue suggested this was much ado about nothing. Though Apple has since provided a fix for those who prefer their phones not keep track of them in this way, and there appears to have been no nefarious intent behind this aspect of Apple’s technology, there may have been more here to concern individuals than Pogue allows.

Pogue writes: “Now, I’ve been in this job long enough to know that there’s a privacy-paranoia gene. Some people have it, some don’t.” And he does not, because, he says, he has “nothing to hide.”

But that is not really the point, is it?

Pogue maintains that, if he were to review all of our personal information, Big Brother would be “bored to tears.” But this view trivializes the potential negative effects of information about you being stored in various information silos maintained by credit-card companies, banks, phone companies, cable companies, and Facebook.

Pogue is right about one thing: these private entities are not Big Brother. They collect user and customer information for purely economic purposes, to know more about the people who buy their products and services and to sell more of those products and services.

The Big Brother of George Orwell’s novel, 1984, was the government. And, under current Fourth Amendment precedent, the government today has relatively easy access to much of the information that these private entities have stored, and from that information could assemble an interesting picture of you—a picture that might accurately represent where you live and work, where you go, and who you spend time with.

Which is not to say that any agents of the federal government are, at this moment, busy compiling dossiers on each of us. It is to say, though, that the government could do that without much trouble. And when that information about you is viewed out of context, it may be that Big Brother would find it all very interesting, regardless whether you believe you have something to hide.

Lawrence Friedman

Postmortem Publicity Rights: Coming Soon to a Court Near You?

noreply@blogger.com (Kent Schenkel) — Wed, 01 Jun 2011 16:23:00 +0000

Most of us are aware that famous persons can control and profit from the use of their identities during their lifetimes. Indeed, many celebrities are said to make much more from the selling of their endorsements and likenesses than from the activities that made them famous in the first place. Essential to securing this type of revenue stream is legal recognition of one’s “identity” as a property right. Granting individual identity the status of property means that the non-owner must have permission to use it. This permits individuals such as Michael Jordan, Oprah Winfrey and Madonna to package and sell publicity rights while imposing any restrictions on the use of their names, likenesses or images they choose.

But what happens when the celebrity dies? Do the heirs and beneficiaries of dead celebrities succeed to their publicity rights, allowing them to market and profit from them? That turns out to be a complicated question. And it’s a question that has heated up considerably in recent years.

Some states, such as California, recognize postmortem publicity rights, and some, such as New York, do not. One issue that presents considerable difficulty is which state’s law controls. Descendible publicity rights also raise sticky federal estate tax issues. Valuation is sure to be complicated and contested (a “herculean task” according to some experts), and discharging the tax obligation virtually requires that the property rights be exploited.

Perhaps most interesting are the policy questions. In a recent op-ed piece in the New York Times, Boston College law professor Ray Madoff argues that postmortem rights of publicity are “getting out of control.” She points out that the identities of important historical figures, such as Rosa Parks and Albert Einstein, are now being used to sell products, and raises concerns about whether literary endeavors involving these figures will infringe on property rights held by their heirs and the companies to whom those rights were sold.

Madoff also contends that while the preservation of proprietary rights in the identities of the dead makes money for heirs and companies, it is unlikely that a famous person would be able to take action during life to prevent a postmortem sale of those rights. She cites a longstanding principle of wills law that a person cannot effectively decree that their property be destroyed at their death. Further, those rights may have to be sold to raise money to pay the bloated estate tax bill accruing as a result of this property interest. Professor Madoff concludes that Congress should enact a preemptive federal statute that provides for a property right that is limited in time and that allows an individual to prevent the endurance of publicity rights after death.

Although Madoff’s proposed solution has precedent in federal trademark and copyright law, don’t look for federal legislation in this area anytime soon. In the meantime, with so much money to be made off of the famous dead, and with the laws in this area being so unsettled, litigation is sure to proliferate.

Kent Schenkel

Budget Cutbacks Undermine Massachusetts Constitution

noreply@blogger.com (Lawrence Friedman) — Thu, 26 May 2011 16:02:00 +0000

Recently, the Boston Bar Association issued a report on the proposed Massachusetts budget for 2012. The report is titled “Justice on the Road to Ruin,” and makes clear that the Massachusetts court system has been making do with too little for too long. Within the past three years, the total funding for the court system has been reduced by more than 14 percent. Positions are going unfilled, dockets are becoming clogged, and the court system is trying not to do more with less, but merely to stay afloat.

One of the early casualties of the budget process was trial court law clerks. These recently graduated law students assisted the judges in the various trial departments – the Superior Court, the Land Court, the Family & Probate Court, and the Juvenile Court – with research and writing opinions and decisions.

The loss of these positions may strike some critics as inconsequential. Why, they might ask, can’t the judges do their own research and writing?

Many judges would probably like to do more research and writing, but the fact is, they are busy judging. They are hearing cases, meeting with attorneys, and attending to the many administrative matters that keep the Massachusetts court system running. They do not have much time left for the kind of in-depth research that, say, a complicated motion for summary judgment requires.

What this means is that trial court litigants may not fully appreciate why they lost their motion or case, and it could mean they are unsure of the grounds on which they might appeal. Further, as one appellate judge told me, in the long term, fewer narrative decisions and opinions mean more work for the appellate courts in reconstructing the basis for the trial court’s determination.

A tangential result of the increased time that state appellate courts must devote simply to understanding the lower court’s ruling is less time, in constitutional cases, to devote to the hard work of interpreting the state constitution. Massachusetts state constitutional claims arise in many criminal and individual rights cases, and the Commonwealth’s appellate courts have a long and storied history of taking seriously the task of figuring out just what it is that the state constitution means in a particular instance, often concluding that it provides more protection than its federal counterpart.

Budget cutbacks necessarily undermine serious efforts at state constitutional interpretation. As I explain in an article forthcoming in the Penn State University Law Review, a lack of time and law clerk resources inhibit the ability of state courts to fully develop their own constitutional law, which results in recourse by these courts to the principles announced by the U.S. Supreme Court, interpreting the federal constitution.

Now, there may be reasons why similarly-worded constitutional state and federal protections should be interpreted in similar ways. But it does not bode well for the future of Massachusetts state constitutional interpretation if the meaning of the federal constitution becomes by default the meaning of the Massachusetts Constitution, simply because the Commonwealth’s appellate courts are unable to do more. That is a loss not just for litigants pressing novel state constitutional arguments in our courts; it is a loss for any citizen who might claim the protection of the Massachusetts Constitution in the future – which is to say, a loss for all of us.

Lawrence Friedman

Is There a Policy Behind the Grantor Trust?

noreply@blogger.com (Kent Schenkel) — Tue, 24 May 2011 16:32:00 +0000

We were all taught in school that statutory laws start with intentional legislative action. This means that federal laws favoring a particular economic faction, for example, were enacted by Congress with the intent to assist that group. We can determine Congressional policy then, by looking at the effect of laws enacted by Congress. The law reflects the intent of Congressional action. Likewise, administrative regulations reflect intent on the part of the responsible agency.

But in their 2010 book Winner-Take-All Politics, the political scientists Jacob Hacker and Paul Pierson ask us to focus, in part, on another aspect of governmental legal activity. Just as important as governmental action is government’s failure to act. Hacker and Pierson identify a form of inaction they call “drift.” Drift results from “systematic, prolonged failures of government to respond to the shifting realities of a dynamic economy.” They give the example of federal minimum wage laws. As inflation reduces the purchasing power of the dollar, minimum wage laws, if they are to keep pace, must be adjusted upward. Failure to make this adjustment in the face of continuing inflation will eventually drain these laws of all of their original effect. This is drift, and the Congressional policy reflected by this drift is that wage floors should not be set by the government.

In a paper prepared for the 2010 meeting of the American Political Science Association, Hacker and Pierson point out that drift often benefits legislators by allowing them to effect (for the benefit of a particular group) what might be broadly unpopular policy without bearing responsibility for that policy. And this form of legislative inaction, just like legislative action, is often mediated by powerful political groups.

Which leads me to the real topic of this post. University of Texas law professor Mark Ascher has written an important paper that shows how Congress, by failing to act, is furthering policies favoring only the high-end estate planning industry and those it serves. Ascher, who is the author of a well-known and regarded treatise on the income taxation of trusts, concerns himself in this article with a device known as the “grantor trust.” A grantor trust is a trust all of the income of which is taxed to the creator and funder of the trust, also known as the “grantor,” or “settlor” of the trust. This is a different taxation regime than exists for those trusts that are not grantor trusts. As a general rule, the typical “non-grantor” trust is liable for tax on income retained by the trust. This means that the trustee must pay the federal income tax out of the trust assets. In contrast, the grantor trust is not seen as separate from the trust’s settlor. All trust income and corresponding deductions are reported on the settlor’s tax return and the settlor is liable for the tax.

The grantor trust rules arose to prevent high-bracket taxpayers from shifting income from themselves to low-bracket trusts, while retaining the benefit of that income. At first, those rules covered only those situations where a settlor retained the right to revoke a trust or retained beneficial enjoyment of the trust’s income. But in a notable Supreme Court case from 1940 called Helvering v. Clifford, the taxpayer created a trust for his wife that was to terminate after five years. He retained the power to determine the amount of any income distributions to his wife. Presumably, the settlor’s goal was to have his wife taxed on income distributed to her from the trust and to have the trust taxed on any income retained by the trust. In this way, he could take advantage of the lower marginal rates to which his wife and the trust was subject.

The Supreme Court held that the settlor was liable for tax on all the trust’s income, which left the law regarding grantor trusts in a state of confusion. A few years later, the Treasury promulgated comprehensive regulations setting out the circumstances under which a trust would be treated as a grantor trust. So these regulations, like the extant grantor trust rules dealing with revocable trusts and trusts that make distributions benefitting the settlor, were enacted to prevent abuses of the income rules by shifting income to trusts. The regulations were later statutorily codified by Congress into the current grantor trust rules.

Between the date of enactment of the grantor trust rules and today, however, Congress also enacted a number of other laws whose combined effect was to virtually eliminate the advantages of using trusts for income-shifting:

• It allowed married to taxpayers to file a joint tax return, essentially treating their combined income as though one-half was earned by each.
• It enacted the “kiddie tax” which generally taxes a child’s unearned income at the parents’ rate.
• It reduced the highest individual tax rate (to which trusts are also potentially subject) from a high of 91% to its current 35% rate.
• It reduced the rate on dividends and capital gains to a maximum of 15%.
• It compressed the trust tax brackets so that trusts are now subject to a tax at the highest marginal rate on all income in excess of $11,350.
• It mandated the treatment of multiple trusts with substantially the same settlors and beneficiaries as one trust.

As a result, Ascher convincingly argues that taxpayers now have little or no incentive to create trusts for the purposes of income-shifting. Congress could therefore repeal the grantor trust rules. Yet it has not done so. As a result, rules enacted to prevent abuse of the income tax rules are now being employed in a number of strategies to avoid transfer (estate and gift) taxes.

Here’s a simplified overview of one of the simplest these strategies. Suppose that TP is a taxpayer whose estate is potentially subject to the federal estate tax. This means that TP’s total wealth exceeds that of well over 99% of all Americans. In order to reduce estate taxes, TP creates a trust for the benefit of his offspring and transfers some of his appreciating assets to the trust. Normally, this trust would be liable for income tax on all income generated by trust investments that is not distributed to trust beneficiaries. But TP makes the trust a grantor trust by inserting a provision in the trust instrument that provides that TP can, if he wants to, replace the trust property by substituting other property of equivalent value. (There is no need to ever actually replace the trust property, this is just language inserted in the trust instrument that allows TP to do this.) The result is that all trust income is now taxable to TP and not to the trust.

Why is this advantageous? The advantage comes when one considers that by paying the tax on trust income from his own assets, TP is essentially making an additional gift to the trust beneficiaries. Moreover, this transfer is not a gift subject to the gift tax because TP is legally liable for the payment of the tax—the tax payment is not a voluntary transfer. The effect, however, is the same as a gift.

Ascher goes into some detail describing a number of other strategies involving grantor trusts being employed by estate planners for the benefit of their wealthy clients. He concludes that these strategies pervert the original purpose of the grantor trust rules and that almost all of those rules should therefore now be repealed. He would preserve the rule that makes a revocable trust a grantor trust.

Ascher’s article is important because it sheds light on policies furthered by Congressional inaction. The integrity of our system of taxation depends on a fair and equitable application of laws. And as Ascher states, ploys like those available to the few under the grantor trust rules exacerbate “the already widely held impression that the [Internal Revenue Code] is a venal collection of provisions designed to allow those whose advisors are ‘in the know’ immense latitude in minimizing their tax liabilities.” Any Congress that fails to reform or repeal the grantor trust rules is by its inaction implementing policies that help bring reality in line with this impression.

Kent Schenkel

This Just In: President’s Use of Military Force in Libya Does Not Require Prior Congressional Approval!

noreply@blogger.com (Victor Hansen) — Fri, 15 Apr 2011 20:27:00 +0000

The Office of Legal Counsel (OLC) recently issued an opinion on the President’s decision to direct the use of force in Libya in support of United Nation Security Council (UNSC) Resolution 1973. The OLC concluded, unsurprisingly, that the President had the constitutional authority to direct the use of force without prior congressional approval. The OLC opinion is the latest in a series of opinions which reached the same conclusions in a long and growing list of Presidential authorizations for the use force in Panama, Somalia, Haiti (twice), Bosnia, and Yugoslavia. According to the OLC opinion, in contrast to the long history of the President’s unilateral authorization to use force, Congress’s power to declare war is not well defined, even though it is expressly provided for in Article I of the Constitution.

The OLC’s opinion reasons that both the Constitution and past history show that not every use of force must have congressional authorization. According to the OLC opinion, the President can unilaterally authorize the use of force when important national interests are at stake and the use of force does not rise to the level of a “war” in the constitutional sense. In the case of Libya, according to the memo, the President articulated two national security interests. First, the United States has a longstanding national security and foreign policy interest in the stability of the Middle East, a stability threatened by Qadhafi’s actions. Second, the United States has longstanding commitments to maintaining the credibility of the United Nations Security Council. If the United States were unwilling to support UNSC 1973, the authority and credibility of the Council would be undermined.

Finally, the opinion concluded that the force the President authorized was limited and did not rise to the level of a “war” in the constitutional sense, and therefore there was no need for congressional authorization. The OLC reached this conclusion for three reasons. First, the President did not authorize the use of ground forces. Second, the operations were limited to a “well-defined mission” to protect civilians and prevent a humanitarian disaster. Finally, the bombing missions were not preparatory to a ground invasion.

Now that we are a month into this limited “well –defined mission,” it is useful to see just how closely the OLC’s opinion squares with the facts on the ground. It is interesting to note that Secretary of Defense Robert Gates may not have been fully on board with the OLC’s rationale when he testified before Congress, in advance of Security Counsel Resolution 1973, that establishing a no-fly zone over Libya was tantamount to an act of war. From the very first days of the military mission, there has also been a great deal of confusion as to exactly what the supposed “well-defined mission” is. Is it to remove Qadhafi from power? Is it to prevent a humanitarian disaster? Is it to support the loosely aligned band of rebels in their efforts to gain territory and eventually move into Tripoli? Is it to maintain the status quo? If the recent squabbling among the NATO allies over the mission is any indication, no one really seems to know the answer to these most basic questions.

In spite of this confusion over what the mission really is, we should not be surprised by OLC’s conclusions. It would really have been news if the OLC concluded that the President needed congressional authorization to use force. Nonetheless, in spite of the long history of Presidents claiming that they have the constitutional authority to authorize the use of force without any input from Congress, Congress can do more than sit passively on the sidelines watching as events unfold. It is noteworthy for example, that Speaker Boehner recently sent a letter to the President asking him to clarify specifically what the mission in Libya is and how long the military action is likely to last. A letter may be nothing more than a political gesture, but it may also provide the spark for Congress to engage in more focused and robust involvement. If Congress really hopes to be an equal partner in such important national security decisions like committing our forces to military action, it cannot simply take the legal opinions from the OLC as the final word on this issue. Time will tell if Congress is up to the task.

Congress, Commerce and the Health Care Law

noreply@blogger.com (Lawrence Friedman) — Thu, 24 Feb 2011 18:53:00 +0000

Writing in Slate in early February, Dahlia Lithwick opined:

If the odds of success for the health care law [in the U.S. Supreme Court] have tilted in recent months, it’s not because the suits [challenging the law] have somehow gained more merit. It’s because the public mood and the tone of political discourse have shifted dramatically—emboldening some federal judges willing to support constitutional idea whose time, in their view, has finally come.

That constitutional idea is that there are judicially-enforceable limits on Congress’s power under the Commerce Clause. Until the Supreme Court’s 1995 decision in United States v. Lopez, the federal courts had regarded the exercise of the commerce power deferentially—legislation would be upheld so long as Congress had a rational basis for concluding that intrastate activity would have a substantial effect on interstate commerce.

In Lopez, the Supreme Court signaled that the commerce power had at least one judicially-enforceable limit: to be subject to regulation, intrastate activity must be inherently economic. Mere possession of a gun, the Court concluded in that case, is not inherently economic.

A decade later, however, in Gonzales v. Raich, the Court confirmed that Congress could regulate even non-economic intrastate activity, if that regulation was a part of a larger, comprehensive scheme to manage a national market—in Gonzales, the market in controlled substances. Gonzales suggested cases like Lopez might remain outliers.

Now, as Lithwick observes, popular criticism of the new health care law has found its champions. In two recent cases, United States District Courts in Virginia and Florida have declared the law unconstitutional because, they reason, it does not regulate economic activity, but rather inactivity—namely, an individual’s decision not to obtain health insurance.

These courts have thus erected a new barrier to Congressional regulation under the Commerce Clause: the distinction between activity and inactivity. Setting aside the lack of precedent supporting the existence of such a distinction, it is enough to say that this new rule does not exactly lend itself to consistent application over time. Is a decision not to purchase health insurance really inactivity, when the economic consequences of that decision are measurable and, in the aggregate, have a significant effect on interstate commerce?

The effort to make and justify such a distinction is a fool’s errand. It is not the responsibility of the federal courts to protect a political majority from itself. As Chief Justice John Marshall reasoned in Gibbons v. Ogden, the first great Commerce Clause case, Congressional discretion ultimately will be controlled by the people. And, as the great Chief Justice might have predicted, the most recent national elections and even more recent polls indicate that the forces opposed to the health care law appear to need no help from the judiciary.

It remains to be seen whether the U.S. Supreme Court will agree with Marshall’s view that, where commerce is concerned, deference to our elected officials is warranted. Many commentators are, as Lithwick notes, predicting a close decision. As in so many close cases, the meaning of our constitution likely will come down to the vote of Justice Anthony Kennedy. At some point, the American people may seriously begin to wonder how it is that we arrived at this place, where one justice’s vote may deny the people’s representatives both the ability to make policy for the nation and the opportunity to change it in response to their constituents’ wishes.

Lawrence Friedman