New England Law Professors

The Supreme Court Strikes Down Warrantless GPS Monitoring

2012-01-26T10:34:00.008-05:00

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

2012-01-10T14:12:00.009-05:00

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

2012-01-03T15:06:00.008-05:00

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!

2011-12-01T17:27:00.002-05:00

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

2011-09-23T10:45:00.004-04:00

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

2011-09-06T11:52:00.002-04:00

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

2011-08-30T16:10:00.006-04:00

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?

2011-07-19T15:00:00.008-04:00

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

2011-07-18T13:00:00.006-04:00

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

2011-07-15T16:27:00.006-04:00

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

2011-07-05T15:42:00.006-04:00

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

2011-06-24T15:41:00.001-04:00

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

2011-06-22T15:48:00.004-04:00

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?

2011-06-22T15:35:00.004-04:00

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?

2011-06-10T13:24:00.025-04:00

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

2011-06-08T16:20:00.006-04:00

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?

2011-06-01T12:23:00.005-04:00

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

2011-05-26T12:02:00.005-04:00

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?

2011-05-24T12:32:00.001-04:00

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!

2011-04-15T16:27:00.002-04:00

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

2011-02-24T13:53:00.009-05:00

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

The End of Marriage?

2011-02-03T17:11:00.004-05:00

In “The Judicial Imposition of Same-Sex Marriage: The Boundaries of Judicial Legitimacy and Legitimate Redefinition of Marriage,” recently published in the Washburn Law Journal, Professor Lynn Wardle argues that judicial decisions invalidating same-sex marriage prohibitions by the United States District Court in Perry v. Schwarzenegger, the Iowa Supreme Court in Varnum v. Brien, and the Connecticut Supreme Court in Kerrigan v. Commissioner of Public Health

raises serious questions about the nature and scope of legitimate judicial authority to alter the state (and social) institution of marriage, about the nature of marriage itself, and about the legitimacy of same-sex marriage created by or as a result of an illegitimate judicial decree.

He condemns these decisions and expresses deep concern about whether we as a nation will survive this onslaught of what he considers unmitigated judicial activism.

Chances are, we will.

As was true of the civil rights movement in the 1950s and 1960s, when it comes to the issue of same-sex marriage, judges are not acting alone. Brown v. Board of Education may have lit the way, but it took Congressional action to effectuate the principle of equality the Supreme Court articulated in that case. Today there are more American jurisdictions that recognize same-sex marriage than Professor Wardle might have imagined ten years ago, not all of them as a result of a judicial decree.

Though, as the courts in California, Iowa and Connecticut have held, equal protection does not permit the perpetuation of discrimination for arbitrary reasons, the real shift in thinking about marriage will not be accomplished through judicial decisions. Wardle is right when he contends that the issue of same-sex marriage ultimately will be decided by the American people.

What will they decide? It may not be what the opponents of marriage equality think. Consider the announcement this week that Barbara Bush, daughter of President George W. Bush, has endorsed legalization of same-sex marriage. She is just the latest child of a prominent Republican to do so.

This is further evidence of a wider generational split: surveys show that young people are not nearly as anxious about same-sex marriage as their parents and grandparents. They are growing up in a world in which it is unremarkable to have openly gay friends, relatives, neighbors, and colleagues. These young people will one day be a political majority. And when they are, courts will have moved on to adjudicating new civil rights issues.

Lawrence Friedman

Free Speech and Inflammatory Rhetoric

2011-01-13T15:34:00.002-05:00

None of the outrageous comments coming out of the mouth of Sarah Palin has been more disturbing than her use of the term "blood libel" to describe media criticisms of her in relation to the tragedy in Tucson.

I doubt that Palin has any understanding of the significance of the phrase, what it refers to, or why it is laden with emotional content, especially for Jews. Undoubtedly, it is the product of the frenzied imagination of someone on her staff.

Nevertheless, it represents a new low in American political rhetoric. It has subliminal power which Palin is now mobilizing to counter the well-founded, nearly universal media critique of how she has conducted herself, particularly in the run-up to the recent election and her very deliberate targeting of Congressional districts like that of Gabrielle Giffords, who just happens to be Jewish.

There is absolutely no justification for this. The press and the media should be uncompromising in condeming this for what it is—in the name of free speech and free expression, nothing less than a blatant attempt to stir up a witches’ brew of hate, bigotry, and mindless passion at a time when there is a need for balance, reason, and self-reflection.

George Dargo

An abbreviated version of this essay was published in the New York Times on Jan. 13, 2011.

The Judges Among Us

2011-01-10T10:29:00.003-05:00

Amid the many tragic stories that came out of the horrific shooting in Tucson this past weekend, I was particularly saddened by the death of John Roll, the Chief Judge of the U.S. District Court for the District of Arizona. Surely the untimely loss of a respected jurist is reason enough for mourning, but I could not exactly pinpoint why his death struck me so hard. I did not know Judge Roll personally, and my professional interactions with him had been minimal -- limited to one case (and never a face-to-face appearance) before him in 2006, and one request for research assistance from his district in 2007. But it has still felt like a very personal loss. Why?

After two days of reflection, I think the answer lies in the level of neighborly familiarity we have with federal judges (and state judges, for that matter). Unlike the President and Congress, who achieve a sort of celebrity status by virtue of election campaigns, and who reside in Washington for all or part of the year, most judges maintain a low profile and live full-time in the communities they serve. When they remove their robes, they are part of that community in exactly the same way we are; through the years, I have run into judges at the supermarket, houses of worship, restaurants and ball games. According to news accounts, Judge Roll went to the Giffords event last Saturday simply to thank her for her support of a measure that would allow his court to better manage its docket. He was a good man, caught in the wrong place at the wrong time. For all the death threats that he had received in 2009 based on an unpopular immigration ruling, he was untimely taken from us because of an innocent and rather impromptu decision to extend a personal thank you. It's a decision that any of us could have made; the ordinariness of the action is why it hit so hard for me.

My deepest sympathies to the families of all the victims of this monstrous act. May the wounded be speedily restored to health, and may those who were lost always remain with their loved ones as a blessing.

"Zombie" Constitutionalism

2010-12-20T12:17:00.006-05:00

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

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

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

George Dargo

Targeted Killings and Judicial Review, continued

2010-12-15T12:24:00.004-05:00

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

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

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

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

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

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

Lawrence Friedman

Targeted Killings and Judicial Review

2010-12-15T08:43:00.001-05:00

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

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

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

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

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

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

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

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

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

Is the Health Care Law Beyond the Commerce Power?

2010-12-13T16:11:00.006-05:00

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

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

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

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

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

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

Lawrence Friedman

More ruminations on judicial elections

2010-11-10T15:38:00.007-05:00

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

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

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

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

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

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

Judging Judges in Iowa

2010-11-03T16:42:00.004-04:00

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

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

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

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

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

Lawrence Friedman

Alleged Lawyer Greed

2010-09-28T18:19:00.005-04:00

Are lawyers greedy?

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

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

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

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

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

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

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

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

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

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

Paul Teich

Whither Peremptories Part Deux

2010-09-01T15:45:00.001-04:00

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

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

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

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

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

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

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

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

Victor Hansen

Whither Peremptories?

2010-08-26T14:24:00.018-04:00

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

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

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

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

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

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

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

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

—Lawrence Friedman

State Judicial Elections: Constitutional but Unhealthy

2010-08-23T13:11:00.004-04:00

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

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

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

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

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

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

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

Jordan Singer

State Power and Same-Sex Marriage

2010-07-21T15:12:00.002-04:00

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

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

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

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

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

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

Lawrence Friedman

The Modern Council of Revision

2010-07-12T13:23:00.004-04:00

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

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

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

George Dargo

Ironically, the Constitution is Lost in Supreme Court Confirmation Hearings

2010-07-07T16:35:00.002-04:00

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

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

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

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

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

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

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

Louis Schulze

Miranda Takes Another Pounding

2010-06-30T10:45:00.000-04:00

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

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

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

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

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

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

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

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

Victor Hansen

Expectations of Privacy, Revisited

2010-06-22T17:22:00.005-04:00

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

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

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

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

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

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

Lawrence Friedman

Inherent Executive Authority and National Security

2010-06-04T14:26:00.004-04:00

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

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

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

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

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

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

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

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

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

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

Louisiana: Why Does it Matter?

2010-06-02T15:16:00.003-04:00

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

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

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

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

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

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

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

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

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

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

George Dargo

Miranda's Real Legacy

2010-05-28T08:43:00.001-04:00

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

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

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

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

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

Modifying Miranda in Terrorism Cases

2010-05-25T14:29:00.012-04:00

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

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

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

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

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

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

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

Lawrence Friedman

Shopping for Privacy

2010-05-19T12:04:00.002-04:00

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

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

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

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

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

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

Lawrence Friedman

Principal Places of Business

2010-05-07T17:41:00.004-04:00

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

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

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

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

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

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

Lawrence Friedman

Public School Teachers and Due Process

2010-05-05T12:29:00.009-04:00

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

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

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

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

George Dargo

Our Perception of Corruption

2010-05-03T10:25:00.006-04:00

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

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

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

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

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

Choosing the Next Watchman

2010-04-27T17:53:00.009-04:00

In a recent New York Times op-ed, Geoffrey R. Stone, of the University of

Chicago, called attention to the disingenuousness of the argument that judges—in
particular, Supreme Court justices—are ever merely implementing the “original
meaning” of the Constitution. Indeed, every time a pundit or a politician
advocates for the appointment of judges who will “strictly construe” the
Constitution, we should remember there is not a judge on the Court—now or
ever—who did not believe he or she was not strictly construing the Constitution.
Whether a commentator agrees likely has as much to do with his or her feelings
about the result as it does the methodology the judge employed to determine the
meaning of the Constitution.

We will have another opportunity to revisit these issues when President Obama
announces his nomination of a successor to Justice John Paul Stevens. He has
said, as Presidents do, that he has no litmus test for potential nominees. At this
writing, two federal court judges—Merrick Garland of the Court of Appeals for
the District of Columbia Circuit and Diane Wood of the Court of Appeals for the
Seventh Circuit—as well as the Solicitor General, Elena Kagan, have been named
as the leading candidates.

Each of these attorneys attended an elite law school, clerked for a U.S. Supreme
Court justice, and has had a storied legal career. Garland is a former federal
prosecutor whom President Clinton nominated for the bench in 1997. Wood is a
former law professor and lawyer in the Clinton Justice Department; President
Clinton nominated her for the bench in 1995. Kagan worked as a lawyer in the
Clinton administration and was dean at Harvard Law School before assuming the
Solicitor General’s post.

As Timothy Egan, writing in the New York Times, recently noted, and as Renée
Landers and I discussed in Jurist following the nomination of Justice Sonia
Sotomayor, debates about strict construction and litmus tests aside, the Supreme
Court is sorely lacking in diversity of experience. With the retirement of David
Souter last year, there is no justice on the Court with significant experience in
state government. With Justice Stevens’s retirement, there is no justice who did
not attend either Harvard or Yale for law school, and none who has not spent a
significant part of his or her career working in either academia or for the federal
government.

Of the three leading candidates, only Judge Wood was educated outside of the
northeast, having attended the University of Texas for college and law school.
Why is this important? Because, when all the justices share similar educational
and professional experiences, the Court as a whole may be missing legal
perspectives informed by, say, the experience of having attended a law school
where doctrine is as important as theory, or of having worked in private practice
or in a state court system, where most American lawyers spend their days and
most cases, civil and criminal, are tried.

“In the end,” as Professor Landers and I wrote last year, “by confining the
shortlist of potential nominees to those lawyers with certain backgrounds,
Presidents overlook the opportunity to add to the Supreme Court another kind of
diversity, one that may be just as important as racial and gender diversity. These
Presidents deprive the public of justices who may see the world and the legal
issues it presents in ways that are different and more helpful than those justices
whose views on the law were shaped by essentially similar educational and
professional experiences.”

Lawrence Friedman

Justice Stevens and Bright Line Rules

2010-04-23T11:32:00.003-04:00

Taking up the thread from my colleague, Professor Friedman, I too think now is a good time to think about some of the themes that we can see in Justice Stevens’ writings. Like Professor Friedman, I too see a consistent effort by Justice Stevens to resist an overly formalistic approach to constitutional jurisprudence. While many who favor formalism do so in the belief that this is the best way to curb judicial activism, Justice Stevens’s writings illustrate how such a goal can prove illusory when it comes to cabining the authority of judges.

There is no better example of this than in the contrast between Justice Stevens’s and Justice Scalia’s opinions in Kyllo v. United States. In Kyllo, the police, using a thermal imaging device, observed the suspect’s home from across the street. The police suspected Kyllo of illegally growing marijuana in his home and they hoped that the thermal imaging device would help them detect any excessive heat emanating from the house. The police scan revealed that Kyllo’s roof and a side wall were relatively hot. Based on this and other information, the police obtained a search warrant and discovered marijuana and evidence of a growing operation in the house.

The issue for the Court was whether Kyllo had a reasonable expectation of privacy in the heat emanating from his house that could be detected by this special imaging device. Concerned about the impact that advancing technology can have on privacy rights, a majority of the Court, in an opinion by Justice Scalia, held that Kyllo did have a reasonable expectation of privacy and the observations by the police constituted a warrantless search of the home. Critical to Justice Scalia’s analysis was his concern about protecting the sanctity of the home, the very core area of Fourth Amendment protection, from invasion through technological advances. He attempted to draw a bright line by ruling that sensory-enhanced observations that reveal information regarding the interior of the home that would not otherwise be observed without physical intrusion constitute a search, where the technology is not yet in use by the general public.

In his dissent, Justice Stevens took a less formalistic approach to the problem, noting that the heat waves observed by the thermal imager were not in fact information about the interior of the home. Rather, the device detected heat emanating off of the walls of the home, and that same information could be observed in any number of ways. Justice Stevens also saw the formalistic bright line rule that the majority hoped to craft as illusory. Most significantly, Justice Stevens noted that by linking the Fourth Amendment protections to the availability of new technology, Justice Scalia was setting the stage for a reduction in privacy protections once the technology achieves a certain level of general use.

At the end of this dissenting opinion, Justice Stevens states that, rather then resolving the rather mundane issue before it, Justice Scalia and the majority attempted to craft an all-encompassing rule for the future. According to Justice Stevens, the Court departed from the “tried and true counsel of judicial restraint.”

It is quite a role reversal to have Justice Stevens accusing Justice Scalia of excessive judicial activism, but his dissenting opinion in Kyllo demonstrates well one of the key guideposts of his jurisprudence. Wary of formalism and cognizant that an excessive devotion to bright line rules can produce benefits that are more perceived then real, Justice Stevens frequently opted for a different, more nuanced and, in many cases, a more common sense approach to the constitutional problems that confront the Court.

Victor Hansen

Justice Stevens and the Commerce Clause

2010-04-13T16:23:00.010-04:00

With the retirement announcement last week of Associate Justice John Paul Stevens, it's not too soon to begin to think about how history will view his 34 years on the high court. As many commentators have noted, Justice Stevens was the last appointed without a televised confirmation, and he may have been the last truly non-partisan pick. Looking over his many opinions, what stands out, particularly in more recent years, is not his leadership of the so-called "liberal" wing of the U.S. Supreme Court, but his unyielding effort to steer the Court away from a formalism that threatened at times to undermine the continuing vitality of our constitutional commitments.

An example is Justice Stevens's opinion for the majority in Gonzales v. Raich. That 2005 case concerned the question whether the federal Controlled Substances Act (CSA) prevented individuals in California from possessing, obtaining, or manufacturing cannabis for their personal medical use. At the time, California was one of several states that authorized individuals to use marijuana for medicinal purposes. Whether these laws ran afoul of the CSA depended in part upon whether the CSA was within Congress's power to enact under the Commerce Clause.

That the Act could be constitutionally challenged was a result of the Court's attempt to rein in Congress's power under the Commerce Clause in two earlier cases, United States v. Lopez, a 1995 decision, and United States v. Morrison, a 2000 decision. In each of those cases, a majority of the Court concluded that Congress could not regulate intrastate activity having a substantial effect on interstate commerce unless that activity has some relation to "commerce" or some some kind of "economic enterprise." In Lopez, the Gun-Free School Zones Act of 1990 failed this test because the Act criminalized mere possession of a gun, which, in the Court's view, was not an inherently commercial or economic activity.

One could reasonably have believed that this reason would apply to a federal law prohibiting marijuana possession for personal medicinal use, and that is precisely what Justice Sandra Day O'Connor argued in her Gonzales dissent--that the "possession and use of marijuana for medicinal purposes has no apparent commercial character." As she correctly observed, "Everyone agrees that the marijuana at issue in this case was never in the stream of commerce."

This line of reasoning, if carried to its logical conclusion, would have severely curtailed the ability of Congress to act under the Commerce Clause. But Justice Stevens, in his Gonzales majority opinion, steered the Court back toward an approach more deferential to Congressional judgments. Under that approach, when Congress elects to regulate a national market in a commodity--and there is no real doubt the CSA is an effort to do just that--the Court will not second-guess Congress's determination that the exemption of local possession of one commodity could have a substantial effect on the larger interstate market.

Of course, the Commerce Clause must have some limits--the Constitution, after all, is a grant of enumerated powers to the federal government. But whether an activity does or does not have a commercial character is a judicially-contrived limit that privileges judicial assessment of just what makes an activity commercial over the decided judgment of the majority of the people's representatives in Congress. So what limit is there on the commerce power? Well, there is democracy: as Chief Justice John Marshall put it nearly two centuries ago, "The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at election are, in this, as in many other instances ... the sole restraints on which they have relied, to secure them from its abuse."

Lawrence Friedman

Close Counts in Horseshoes and Miranda Warnings

2010-04-09T08:04:00.003-04:00

In February, the Court announced the latest in a line of cases related to the sufficiency of Miranda warnings. In Florida v. Powell, the Court held that even though the police did not specifically inform the suspect that he had the right to consult with an attorney during questioning, what he was told was sufficient to convey that information.

In Miranda v. Arizona, the Court set out what it hoped would be a set of simple, easy to apply set of warnings that the police must give to a suspect before engaging in any custodial interrogation. The Miranda Court hoped that these warnings would help to level the playing field between a suspect and the police in the pressure-filled and coercive environment of a custodial interrogation. The Court also believed that a simple set of warnings would help to extract the Supreme Court and the lower courts from having to sort out the very fact-bound and inherently conflicting evidence that had, up to that time, characterized much of the litigation over the voluntariness of confessions.

Looking back now 44 years after Miranda, Florida v. Powell is another reminder that the Miranda Court’s vision has not been realized. On the contrary, Miranda has created a complex, confusing and inherently inconsistent body of caselaw and it leaves us wondering whether Miranda really solved anything.

The specific rights and warnings that the Court set out in Miranda were: the right to remain silent, the warning that anything the suspect says could be used against the suspect, the right to have an attorney present during questioning, and the right to have an attorney appointed if the suspect could not afford one. In Powell, the Court was asked to rule on the adequacy of the standard warnings used by the Tampa Police Department. The Tampa warnings did not specifically tell the suspect that he or she had the right to have an attorney present during questioning. Rather, the warnings told the suspect that he or she has the right to talk to a lawyer before questioning, and that the suspect has the “right to use any of these rights at any time you want during questioning.” The Court, in an opinion written by Justice Ginsberg, found that, while these warnings did not track exactly the requirements of Miranda, the warnings sufficiently informed the suspect that he or she could have an attorney present during questioning.

It is true that the Tampa Police Department’s warnings do not depart drastically from the Miranda requirements, but the question remains: if Miranda set out such bright line guidance, why depart from it at all? Could it be that the police are hoping that by simply throwing in a catch-all phrase at the end of the warning, the suspect will not fully make the connection between the right to consult with counsel before questioning and the right to have counsel present during questioning? When the Court approves of these “close enough” warnings procedures like the one in Powell, is it also signaling that it too does not think much of the protections provided by Miranda? What does seem sure is that a healthy majority of the Court, both liberals and conservatives, will continue to pursue a course of Miranda jurisprudence that departs from the simple guidance that the Miranda Court hoped to achieve.

Victor Hansen

J.D. Salinger's Privacy Precedent

2010-04-02T11:04:00.010-04:00

At the time of his death in February, J.D. Salinger was as well known for the lengths to which he went to protect his privacy as for his stories about Holden Caulfield and the Glass family. Those efforts included litigation, in a case Salinger brought against Random House, publisher of an unauthorized biography called J.D. Salinger: A Writing Life, written by the other named defendant, the writer Ian Hamilton.

Hamilton researched and wrote the book in the mid-1980s, without any assistance from his subject or the vast majority of the subject’s friends and acquaintances. This was not unusual; in several chapters, Hamilton canvassed the many failed attempts by journalists over the years to learn more about the reclusive Salinger, including visits to Cornish, New Hampshire, where Salinger resided, to query the townspeople about the legendary and mysterious author. (Among the townspeople whom reporters approached was Judge Learned Hand, who summered in Cornish and declined to speak to an reporter from Newsweek about his friend and neighbor. In the book Random House eventually published, In Search of J.D. Salinger, Hamilton discussed their warm friendship, as did Gerald Gunther, many years later, in his biography of Hand.)

Though individuals closest to Salinger would not cooperate with him, Hamilton did have access to many of Salinger’s unpublished letters. In the first complete draft of A Writing Life, he quoted from those letters, so that readers might get a sense of the way in which Salinger expressed himself—his “tone,” as Hamilton put it. When Salinger (having obtained a galley copy of the then-unpublished book) objected, Hamilton turned to paraphrasing the letters. But Salinger did not withdraw his objection, and instead sought a preliminary injunction in the United States District Court for the Southern District of New York. Random House defended on the ground of fair use. The defendants prevailed in the District Court, but the First Circuit had other ideas. In Salinger v. Random House, the court reasoned:

To deny a biographer like Hamilton the opportunity to copy the expressive content of unpublished letters is not, as appellees contend, to interfere in any significant way with the process of enhancing public knowledge of history or contemporary events. The facts may be reported. Salinger’s letters contain a number of facts that students of his life and writings will no doubt find of interest, and Hamilton is entirely free to fashion a biography that reports these facts. But Salinger has a right to protect the expressive content of his unpublished writings for the term of his copyright, and that right prevails over a claim of fair use under “ordinary circumstances.”

The U.S. Supreme Court denied certiorari.

The First Circuit’s decision provides protection for unpublished work—at least, it provides protection for the work’s “expressive content,” as distinguished from the “facts.” But does the decision really protect privacy? That depends, of course, on how privacy is defined and measured. Alan Westin famously described privacy as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.” Privacy, in other words, is about the extent to which we can control the dissemination of information about ourselves.

On this understanding, Salinger v. Random House really doesn’t offer any kind of broad guarantee of personal privacy. To be sure, the decision safeguards those form of the thoughts that we commit to paper but do not publish. And this is something—we may take some comfort in knowing that the law will protect the way in which we choose to express ourselves within the confines of a communication we neither intend nor desire to share with the world.

Importantly, however, the Salinger case provides virtually no protection for the information contained in an unpublished expression of thought, which can be mined for what it is worth. “The facts,” the court concluded, still “may be reported.” In short, Salinger’s effort to stop disclosure of his unpublished letters resulted in a decision that shields the words with which we choose to explain ourselves, not the substance of what we say.

Lawrence Friedman

2010-03-31T11:44:00.003-04:00

Expectations of Privacy in a Technological Age

A recent article in the New York Times reported on the ways people frequently share rather private information through social networking sites such as Facebook, as well as when engaging in online commerce and other Internet activity. The article reported on how relatively easy it was for third parties to gather information from these sites in order to make future predictions about someone’s purchasing or movie rental habits, and in some cases third parties were able to predict much more personal information, such as someone’s social security number, based upon their online activity.

There is no question that new technologies and new uses for the Internet have important privacy implications. I am often struck by how willingly and perhaps unthinkingly people who have grown up in the Internet era are to put what I view as very private information online. For me this raises the question: in which activities do we have a reasonable expectation of privacy?

This focus on reasonable expectation of privacy of course comes from the Supreme Court’s opinion in Katz v. United States. In Katz and in subsequent cases the Court held that the protections of the 4th Amendment applied to conduct for which there was a subjective expectation of privacy which society is prepared to recognize as reasonable. The short-hand test is “reasonable expectation of privacy.” In the years after Katz, the Court has been asked on a few occasions to apply that test in the arena of advancing technologies. In Kyllo v. United States, the Court held that the police officers’ use of a thermo-imaging device to detect the amount of heat that was radiating from a home was a search under the Fourth Amendment, because those living in the home had a reasonable expectation of privacy in that information. On the question of advancing technology, the Court noted that, because the thermo-imaging device was not something that was readily available to the general public, there was still a reasonable expectation of privacy in the information detected by the device.

While many would agree that the outcomes in both Katz and Kyllo are protective of individual privacy rights, the practices which we as a society seem to be developing and following when it comes to Internet use have me wondering whether “reasonable expectation of privacy” is the right threshold test for Forth Amendment protection. If the protections of the Fourth Amendment are triggered in large part by our societal norms, then it seems that in much of our daily lives, whether it is engaging in online shopping or banking, or social networking, texting, talking on our smart phones, or driving, we have set a pretty low threshold for the types of information we expect to be private.

Perhaps it is time, given these social dynamics, to re-examine the reasonable expectation of privacy test, and also to re-examine exactly what core interests the Fourth Amendment was intended to protect. Was it to protect privacy, or is there something more or a different interest at stake? In this age of information collection and sharing that seems to occur seamlessly between governmental entities and the private sector, can the Fourth Amendment be used to draw meaningful distinctions between information held in the private sector and information to which the government has access? When people engage with the most modern technological tools, do they really understand and appreciate the privacy issues at stake? How does our experience in the post 9/11 world change our view, if at all, toward the role of government? Just what does it mean to have a reasonable expectation of privacy in the 21st Century? These are important questions to think about next time we pick up a smart phone or order a movie online or share pictures of our friends over a social networking site.

Charter Schools: Under the "Pretense of Loving Liberty"

2010-03-28T23:24:00.006-04:00

Ever wonder where the money comes from for the charter school movement? Follow the money and you get a sense of who really benefits from all this choice: it’s not the kids.

Rhode Island’s General Assembly recently voted to raise the limit on charter schools from 20 to 35. Governor Donald Carcieri was quick to sign the measure and voice his support for charter school growth.

"It is imperative that we offer students challenging environments in which to learn," Carcieri stated.

The statement should have clarified that by this the Governor meant new challenging environments: just one month earlier the Governor proposed the largest cut to education spending in almost two decades according to the Providence Journal.

Central Falls, the state’s poorest city as well as ground zero in the nation’s war on public school teachers and institutions, is slated to lose 1.7 million under the Governor’s budget.

This is the same city in which the superintendent recommended, and Rhode Islander's Commissioner of Education approved, the termination of every teacher at the sole high school. This misguided effort to "turn around" this low-performing school was prompted by President Obama's "Race to the Top," an ill-conceived state competition for education funding.

Pawtucket, another high-poverty district in Rhode Island, will lose $2.5 million under the budget. In this same budget, the Governor allocated an additional $7.2 million dollars to expand five charter schools and create two others.

Millions of state education dollars are being diverted from neighborhood schools and handed over to quasi-private entities, some with no track record of success. The strategy is to starve the public sector and simultaneously portray the private sector as the only remaining solution.

Proponents of charter schools do their best to depict their movement as a grassroots campaign driven by parents and children, but this is inaccurate.

The Rhode Island League of Charter Schools has a lobbying partner: Advocacy Solutions. This company’s clients include Delta Dental of Rhode Island, Verizon, and National Grid.

On its website, Advocacy Solutions takes great pride in its manufactured grassroots campaigns to facilitate charter school growth in other states, admitting it was hired by the Connecticut Alliance for Great Schools to "build a grassroots network of supporters and to generate a groundswell of grassroots letters, emails, and calls to state legislators’ offices." The result of this work: a substantial increase in funding for Connecticut’s charter schools.

Under the "pretense of loving liberty," words penned by President Abraham Lincoln in his rail against hypocrisy, but equally applicable to today's charter school proponents, education reformers now trumpet a child’s right to a quality education. But from where I stand, I see more pretense than liberty. The choice, if any, that students will gain, will be one that curtails their liberties by eroding the quality of education they receive.

2010-03-18T12:11:00.003-04:00

Supreme Court Draws a Bright Line for the Edwards Bar

In Maryland v. Shatzer, the Court definitively answered a question that had remained open since Edwards v. Arizona, regarding the effect of a suspect’s invocation of his right to counsel following Miranda warnings. In Edwards, the Court held that once a suspect in custody had requested to talk with a lawyer before speaking to the police, the police must cease questioning and they cannot reinitiate questing unless and until the suspect’s counsel is present. This requirement has come to be known as the “Edwards bar.” According to the Court, this additional level of prophylactic protection is necessary to preserve the integrity of an accused’s choice to communicate with police only through counsel. Without this additional protection, nothing prevents the police from simply badgering the suspect until he agrees to waive his right to have counsel present for questioning.

The issue not addressed in Edwards is, once the suspect invokes the right to counsel and the Edwards bar is raised, can anything short of providing counsel, such as releasing the suspect from custody, lower the Edwards bar and allow the police to reinitiate questioning? Until Maryland v. Shatzer, the Court had not addressed that issue directly.

In Shatzer, the suspect was serving a sentence for child-sexual-abuse conviction. While in jail, a detective wanted to question Shatzer on another, unrelated allegation of child abuse. Shatzer was read his Miranda rights, and he invoked his right to counsel and the police terminated the questioning. Some two and a half years later, while Shatzer was still incarcerated, the police once again sought to question him about this unrelated incident. This time, after reading him his Miranda rights, Shatzer waived his rights and agreed to talk with the police, eventually incriminating himself in this other incident.

In resolving this case, the Court addressed two issues. First, does a break in custody lower the Edwards bar so that the police can at some point reinitiate questioning without counsel being present, and if so, how long of a break in custody is required? Second, what amounts to a break in custody for Miranda purposes? The interesting thing about this case is how the Court took two very different and diametrically opposed approaches to resolving these issues.

On the question of whether a break in custody can lower the Edwards bar, Justice Scalia writing for the majority, held that a break in custody can lower the Edwards bar. Justice Scalia reasoned that once the suspect is released from custody, he is no longer in the police dominated atmosphere, cut off from his normal life and companions. He is free to seek the advice of friends, family and an attorney. He knows from past experience that he can stop the questioning by requesting counsel and the risk that his will would be worn down by police reinitiating questioning is highly unlikely. If the police were prevented from reinitiating questioning in such a case, the cost in terms of the inability to obtain and use voluntary confessions would be too great.

How long of a break in custody is necessary before the police can reinitiate questioning? Here the Court arbitrarily selected 14 days as the magic number. In selecting this as the time frame, Justice Scalia acknowledged that it was an arbitrary choice. He justified the Court’s authority to do this, noting that since the Edwards bar is not a constitutional mandate but a prescribed prophylaxis, the Court has the authority to impose a rule setting out its limits. Opting for this bright line rule of 14 days over a less specific fact bound and factor driven rule, Justice Scalia said that the police need a rule of certainty in order to know when renewed interrogation is lawful. So the clear holding of this case is that the police can reinitiate questioning after a break in custody of at least 14 days.

If this new rule was applied in Shatzer’s case, the police could not have reinitiated questioning because, of course, Shatzer was still in custody, serving time for the unrelated offense. And this is where the case gets even more interesting. In order to account for the fact that Shatzer was still in custody, the Court distinguishes custody for Miranda purposes from the type of custody that a suspect may be under in normal prison life. According to the Court, they are not the same. In prison-custody the suspect is able to do such things as move around and mingle with other inmates, visit the library, have visitors, get mail and phone calls, work in the prison, and otherwise interact with members of the prison community. In Miranda-custody on the other hand, the suspect’s freedom of movement is further restricted and his contact with the outside world, even the prison world, is further limited. The Court reasoned that in the two and a half years between questionings Shatzer was not in Miranda custody, but rather just prison-custody. Therefore, there had been a sufficient break, allowing the police to reinitiate questioning.

The arbitrariness of the 14 day break in custody and the distinction between Miranda-custody and prison-custody can, and likely will, be debated by commentators well into the future. What is of particular interest to me is how in choosing the 14 day rule, the Court opted for a bright line rule over a fact and factor based analysis, yet, when distinguishing between Miranda-custody and prison-custody, the Court went the opposite direction. Rather then applying the much brighter line rule that custody exists anytime a person’s freedom of movement is restrained, the Court chooses to examine the specific facts of this case and particular factors that might distinguish Miranda custody from prison custody. So why the bright line rule in one context and the fuzzy fact bound rule in the other?

Of course, one answer might be that this is just an example of outcome determinative justice. In order to reach the result it wanted, the Court simply had to take two different approaches. That may very well be the answer. It also may be that the Court simply feels more willing to create bright line rules for a law enforcement audience and less compelled to do so when it is the courts that will be sorting out the issues. Perhaps there is less of a need for a bright line rule on the custody question because, in order for any confession to be voluntary, the Miranda custody would have to be relativly short. This case is a good example of a Court less guided by principle then pragmatisim. It will also be interesting to see just how bright this 14 day line really is in future cases. If past history is any guide, many of the Court’s bright line rules in the Miranda context have dulled over time.

In the "Race to the Top," President Obama Takes a Wrong Turn

2010-03-15T14:00:00.013-04:00

The Race to the Top, a $4.35 billion dollar competitive grant fund, exposes the major deficit in President Obama's plan for reforming this country's persistently lowest-achieving schools: a reluctance to directly address the relationship between struggling schools and concentrated poverty. Although Massachusetts and Rhode Island are both finalists in this competition, neither state is likely to emerge victorious, even if they are declared winners in this race.

The goal of the Race to the Top is to turn around 5,000 struggling schools in the next five years. Secretary of Education Arne Duncan referred to these schools last summer as our "bottom schools," "dropout factories," and places "where it's just simply not working."

But the Race to the Top's framework for reforming these struggling schools is narrow: individual states are encouraged to intervene primarily by clearing the path for charter schools, replacing teachers and principals, or closing down schools.

Forty states and the District of Columbia submitted applications in the competition's first phase: only 16 finalists were announced and very few winners are expected when a final decision is made next month.

All entrants were instructed by the U.S. Department of Education to identify their persistently lowest-achieveing schools. A number of factors were to be taken into account: the school's Title I status (for schools with a large percentage of low income students or that are located in high poverty neighborhoods), its No Child Left Behind assessments, and for high schools, persistently low graduation rates.

In both Massachusetts and Rhode Island, there were few surprises when their lowest-achieving schools were identified. The sole high school in Central Falls, Rhode Island's poorest, smallest, and most crowded city, was identified and targeted for intervention. Five more schools were identified in Providence.

Two weeks ago, Massachusetts officials identified the Commonwealth's 35 persistently lowest-achieving schools. Most are in Boston, and the others are located in some of the state's poorest cities: Fall River, Holyoke, Lawrence, Lowell, Lynn, New Bedford, and Worcester.

The Massachusetts' Department of Education reported that in these lowest-performing schools "nearly 9 out of 10 [students] are eligible for free or reduced-price lunch based on family income, 21 percent are students with disabilities and 26 percent are limited English proficient." The Central Falls demographics are similar: 96% of public school students qualify for free or reduced-price lunch, while 22% are English Language Learners and 24% receive special education services.

What has bewildered and angered many is the manner in which the federal government has chosen to "help" schools in cities like Central Falls. Instead of seeking to support the school, the students, and the community, the implementation of the president's reform proposals has instead resulted in all of the Central Falls High School teachers and administrators being fired. (full story) With a state unemployment rate of 12.7%, that's assistance Rhode Island can do without.

Any attempt to highlight the tremendous needs faced by the residents of Central Falls (or equally impoverished cities in Massachusetts) is viewed by the "reformers" as an attempt to create excuses for failing schools. The reality is that "failing schools" serve as a convenient excuse for a federal government either incapable or uninterested in helping citizens at the bottom of the socioeconomic ladder.

In both Rhode Island and Massachusetts, many of the cities and towns that contain the lowest-achieving schools also face an array of additional and interrelated problems: a steady and dramatic loss of manufacturing jobs, declining wages, and fewer worker protections in the form of health care benefits or pension plans.

Rather than stepping in to provide workers with what they have lost from the private sector, the federal government has instead chosen to attack the public sector. Placing the spotlight on schools and teachers eliminates the sense of urgency necessary to address issues such as the lack of affordable housing and health care, high unemployment rates, and the loss of worker protections.

On these matters, the federal government is largely absent or ineffective: states and their poorest residents have been largely abandoned and told to fend for themselves. Instead of assisting these hardest-hit communities, the Race to the Top may destroy what's left of them.

-Monica Teixeira de Sousa

Free Speech and Its Limits

2010-03-10T15:02:00.008-05:00

In the wake of the United States 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, a Washington Post poll revealed that 8 in 10 respondents opposed the decision. Senator John Kerry, among others, announced his support for a constitutional amendment to overturn the decision and “to make it clear once and for all that corporations do not have the same free speech rights as individuals.”

Amendments to the United States Constitution are rare. The document has been amended just twenty-seven times since 1787; a raft of amendments, including the First Amendment, following almost immediately in 1789, and the most recent amendment was ratified in 1992, more than two hundred years after it was first proposed.

Yet this is not the first time a U.S. Supreme Court decision interpreting the First Amendment expansively has triggered the impulse to amend. Consider the Court’s decision in Texas v. Johnson, more than twenty years ago, in which the Court concluded that, whether we like it or not, the First Amendment protects symbolic expression, including flag burning.

At the time, Texas and a majority of the states had laws on the books prohibiting desecration of the American flag. The case concerned a demonstration at the 1984 Republican National Convention in Dallas. Johnson, while marching with other protestors at the demonstration, doused an American flag in kerosene and set it on fire. After a Texas appellate court overturned Johnson’s conviction, the state appealed to the U.S. Supreme Court, arguing that its interests in preserving the flag as a symbol of national unity and in maintaining order were sufficiently important to overcome the speech protections of the First Amendment.

The Court rejected these arguments, holding that flag burning may be protected as symbolic speech when the speaker intends to send a particularized message that is likely to be understood by observers. The Court noted that there was not in fact a breach of the peace because of Johnson’s flag burning. As for the interest in preserving the flag as a symbol of nationhood, the Court concluded that the state was essentially trying to promote one view of the flag and to punish those who did not agree with that view. But under the First Amendment, as Justice William Brennan wrote for the majority, “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Needless to say, Texas v. Johnson did not end national debate about the issue. Far from it. Following the decision’s release, Congress tried to make it a crime to desecrate the flag, but the Court struck that law down, too, on similar grounds.

Flag burning is still with us: as several local media outlets reported last summer, residents of Rockland, Massachusetts, were upset about the owner of a used car lot who displayed an upside-down American flag on his property to protest the refusal of town officials to renew the license for his lot. One resident, whose son was killed in Iraq, saw the display of the upside-down flag as a sign of disrespect for the men and women who have died in service to the nation.

Many Americans would agree with this sentiment. But not enough, apparently, to fully engage the machinery of constitutional amendment. Indeed, though various efforts have been made since Texas v. Johnson to pass an amendment that would allow the federal and state governments to ban flag desecration, each has failed—despite the fact that a majority of Americans claim to support such bans. Which raises questions: if an effort to undo Texas v. Johnson has yet to succeed, will an effort to undo Citizens United fare any better? Or, is it more likely we will come to acknowledge, as we have in the years following Texas v. Johnson, that, while certain speech cannot be restricted under the First Amendment, honoring that principle does not necessarily mean we have to credit either the message or the speaker?

Lawrence Friedman