How To Succeed in Law School?

I received an interesting question recently from an incoming student: “How does a student get through New England Law successfully?” In thinking about how to answer this question, I decided to articulate the most common early mistakes that I see students make. So, for the benefit of students starting law school this fall, here’s the list:

1. Not using time wisely: underworking. Some of the students who suffer from the "not using time wisely" problem simply don't spend enough time on law school. Often, these students think that law school is like undergraduate study, where some students could put in maybe four hours a day during the semester on classes and/ or studying, and then cram for finals at the end. It just doesn't work like that in law school, because there's so much material that you have to comprehend immediately. I recommend that first semester students assume that they need to put in 40 hours a week during the semester, and about 60-80 hours a week during and just before finals. I've found that students who work hard during the semester on fully understanding the law as they learn it have more time before exams to focus on exam prep (i.e. how to write a law school essay, etc.)

2. Not using time wisely: overworking. Some students who don't use time wisely are not working efficiently. A lot of times, these students are diligent, hard-working students who have the exact right attitude for law school, but they try too hard to do EVERYTHING. Students who do well in law school know their limits and are able to prioritize the important things and de-prioritize the less important things. So, what are the important things? That's my next point....

3. Understanding what law school is actually about. Many students underperform because they misconceive what they're supposed to be learning and how they're supposed to demonstrate it on final exams. This problem actually falls into two categories....

a. Understanding what you're supposed to do during the semester. Law school is odd in that we seem to send the message that the cases are the most important thing you're studying. Because most classes use the Socratic method and the case method, the implicit message is that you will be tested on cases. When I was an undergrad, I took a Constitutional Law class in which the final exam simply asked us to EXPLAIN ten cases we'd read. Law school is NOTHING like that. Although the cases "matter," what they matter FOR most is not what many students think. What the cases matter for is: (1) the legal rule (i.e. what the law is); and (2) how the facts apply to that rule. The legal rule is important because that's the blackletter law that should go into your outline; it's the "stuff" you need to know. How the court applies the facts to the law is important as an example for you of how to DO legal analysis. And, that leads to the second category....

b. Understanding what's expected of you on exams. On essay exams, you are graded mostly on your legal analysis. Most 1L students think that you're graded on your ability to recite the rules of law that you learned from the cases and to determine the outcome of hypotheticals "correctly." While you DO need to know and express those rules on exams, that counts for maybe 10% of your grade. The other 90% is based on your legal analysis. So, what's the difference? Here's an example:


Bad essay answer: The Issue raised in this problem is whether D is guilty of murder. Murder is the premeditated killing of another person. Because D premeditated, he's guilty of murder.


Good essay answer: The Issue raised in this problem is whether D is guilty of murder. Murder is the premeditated killing of another person. The prosecution will argue that because D and victim had recently had an argument, that shows that D had the motive to kill victim and thus he likely premeditated. D will argue, though, that this killing occurred in the heat of passion, because of the recent disagreement where insults were exchanged, and he can therefore only be convicted of manslaughter. This case is similar to State v. Jones where D was in a heated exchange with victim and ultimately killed him. The court held that "mere words are not enough" to allow a finding of "heat of passion." Like Jones, this case involves only mere words. These words were insufficient to permit a finding of "heat of passion," and therefore D is guilty of murder.

The "Bad" example is an extreme version of an inclination I see often; students think that they need to say the rule and say the result -- almost like a written version of a multiple choice question. By contrast, in the “Good” answer, the student not only stated the law but also applied it in an almost dialectical fashion. This shows that the student will be a good attorney because not only can she represent her client, but she can also foresee and rebut her adversary’s arguments.

So, there you have it. Those are, in my humble opinion, probably the biggest and most common mistakes that I see. I invite comments from current students on their perceptions and experiences, too. If my ideas on this are controversial, I certainly welcome other thoughts. I think the more information we can provide to incoming students, the better prepared they will be to succeed.

Health Care and the Commerce Clause

A friend asked me, in all sincerity, how I plan to teach National Federation of Independent Business v. Sebelius—the Health Care Cases—in my constitutional law class next spring. It’s a good question. Chief Justice Roberts’s opinion discusses and alters commerce and spending clause doctrine and elaborates on the taxing power—the case could be its own course in Congressional authority under Article I of the Constitution. (My friend also said she’s still trying to figure out whether Roberts actually called balls and strikes in Sebelius or “if he took the ball away from the pitcher and told everyone to go home because the game was over”).

What may pose the greater challenge is how to incorporate into discussion of the constitutionality of the Affordable Care Act’s individual mandate some sense of the decision’s political dimensions. Democrats have praised the decision and commentators have expressed respect for the Chief Justice’s decision to side with the so-called liberal justices. But at a certain level his decision appears motivated less by fidelity to constitutional principles than a desire to protect the integrity of an institution—the U.S. Supreme Court—that has surprisingly often in the past decade paid slight deference to the work of the elected and politically accountable branches of the federal government.

Indeed, as my colleague Louis Schulze has noted, in this case there were five votes for the proposition that an individual decision to freeload when it comes to health care, which has a demonstrable—and profound—impact on interstate commerce, is somehow not activity within Congress’s reach. This conclusion, as Justice Ruth Bader Ginsburg notes in her opinion in Sebelius, is hardly self-evident in light of the Court’s commerce clause precedents, and it arguably fails to respect the legislature’s competence to make judgments about the aggregate effect of economic decision-making. Given that, as one appeals court judge noted, “it is possible to restate most actions as corresponding inactions with the same effect,” the Court’s new activity-inactivity distinction may simply be an invitation to judges to engage in subjective assessments about the validity of a wide range of federal regulations.

As discussion begins about the long-term implications of this new commerce clause principle, it would be good to remember that experiments with formalistic constitutional doctrines that effectively cabin the federal government’s ability to regulate have been relatively short-lived. For instance, in the 1995 case United States v. Lopez, the Court held that Congress can only regulate activity that is inherently economic under the commerce clause—and then ten years later concluded in Gonzales v. Raich that Congress may regulate even non-economic activity when it is part of a broad effort to regulate a national market, effectively embracing a means by which Congress can get around Lopez. The Court may soon discover that in order for the federal government to address some of the truly national problems the country now faces, it will have to develop a way for Congress to get around its new activity-inactivity distinction, too.

Lawrence Friedman

The Health Care Cases: “Democrats Win the Battle, but Lose the War … and Don’t Even Seem to Know it Yet” or “How Chief Justice Roberts Got to Have his Cake and Eat it, Too"

I’m baffled by the reaction to today’s ruling in National Federation of Independent Businesses v. Sebelius (which is quickly attaining the nickname “The Health Care Cases.”).  Democrats seem to be rejoicing “a win,” in that the Affordable Care Act was upheld.  What everyone seems to be ignoring is the fact that the Court also held that:  (a) Congress lacked the power to enact the individual mandate under the Commerce Clause; and (b) it also lacks the power under the Spending Clause to withhold Medicare funding to states who refuse to participate in the Medicare expansion.  In crowing about this “victory” for the President, I honestly don’t think that Democrats have quite figured out the long-term consequences of what Chief Justice Roberts just pulled off today.  But, know this:  his feat today is downright historic…

Most people probably don’t care about the Commerce Clause or the Spending Clause.  These were just some words of jargon that lawyers were throwing around, and what people really cared about was whether Obamacare would still exist.  The elation to be heard outside the Supreme Court building seems to confirm this, and even the commentary by talk radio pundits in the first hours after the decision seemed to focus only on the survival of the ACA.  What folks are missing is the fact that the Supreme Court just fundamentally altered (or put back into place, depending upon where you’re standing) the balance of power between states and the federal government.

To be clear, the Commerce Clause is the source of power for the vast majority of federal social legislation.  Georgetown Constitutional Law Professor Randy Barnett, the architect of the challenge to the ACA and longtime advocate for curtailing federal power has stated that the original meaning of Congress’s power under the Commerce Clause is that it only extends to “trade in things – goods” and that it merely creates a free-trade zone among the states with Congress regulating matters within the stream of commerce.  Barnett’s theory on the ACA is that even if insurance can be deemed a “good,” it still is beyond the reach of the Commerce Clause because the individual mandate compels citizens to enter into commerce rather than merely regulating what is already in it.  By seemingly agreeing with this theory today, the Supreme Court arguably calls into question such fundamental social reforms as the Civil Rights Act, workplace safety laws, and minimum wage laws … and yet Democrats are celebrating.

Despite the impact of today’s ruling on the Commerce Clause, Democrats seem just about ready to canonize Chief Justice Roberts, given that he – and not Justice Kennedy, as had been widely expected – provided the swing vote for saving the ACA.  Little to do they know, apparently, that what the Chief Justice pulled off today was nothing short of a masterstroke.  As a longtime advocate of a conservative approach to interpreting the constitution, the Chief Justice no doubt seeks to reinforce the power dynamic between the states and the federal government.  As a former law clerk to then-Associate Justice Rehnquist, he no doubt relishes the opportunity to complete the federalism revolution his former boss started.  At the same time, though, Chief Justice Roberts also appreciates the impact of the Court’s actions on its legitimacy and has openly strived to avoid closely-divided or blatantly partisan rulings from the Court.

Today, he somehow was able to achieve those two seemingly incompatible results simultaneously.  By narrowing the Commerce Clause, he has substantially undermined the federal government’s power to involve itself in citizen’s lives; but, by casting the deciding vote to uphold the ACA’s individual mandate as a permissible “tax,” he achieves the pragmatic goal of deferring to one of the elected branches of government and showing that the Court is still above politics.  He literally got to have his cake and eat it, too, and it shouldn’t be too long until the cognoscenti begin to recognize the sage brilliance of this maneuvering.

So, for now, Democrats are celebrating.  Hopefully, the Affordable Care Act will work as advertised and provide health insurance to millions of people who otherwise would have suffered.  But, in the not too distant future, we will certainly have to reckon with the real results of today’s decision:  “The New Commerce Clause.”  Whether that occurs when the Supreme Court invalidates some crucial social policy or whether it occurs when Congress is too timid to legislate, one thing is certain: Chief Justice John Roberts will be in the SCOTUS Hall of Fame, because this guy just pulled off the Kobayashi Maru of constitutional adjudication.

Louis Schulze

The Constitution, Congress, and the Repeal Amendment

When Congress acts pursuant to its enumerated powers and does not infringe upon an individual right or liberty, the U.S. Supreme Court has traditionally treated the legislation with deference. This approach lately has come under fire. Randy E. Barnett, who teaches constitutional law at Georgetown, has endorsed the enactment of the so-called “repeal amendment” – an amendment to the Constitution which would provide for the repeal of a particular federal law or regulation “when the legislatures of two-thirds of the several states approve resolutions” favoring the same.

Such an amendment is contrary to the intentions of the framers as reflected in the text and structure of the Constitution itself. They met in Philadelphia in 1787 to address the inadequacies of government under the Articles of Confederation, finally recognizing that, in order for the young nation to move forward – for its economy to thrive, for its borders to be protected, for its people to be secure in the world – it needed a government to both represent and speak for all citizens – a government of the United States, supreme by design in matters of national policy both domestic and foreign. 

By subjecting every national policy to review by the people acting through their state legislatures, the repeal amendment would threaten the most vital aspects of the governmental plan adopted by the framers. As my late colleague George Dargo put it, “[t]o provide states with a mechanism for disapproving of federal laws would not only undermine the institution of Judicial Review, but it would fundamentally alter the architecture of American government as we have come to know it in the past two hundred years.”

Of course, altering the architecture of the American government is the point of the repeal amendment. Which begs the question whether our constitutional architecture, as understood by the Supreme Court, has truly failed us.  Proponents of the amendment assert that the federal government is out of control – an assertion that assumes the federal government is divorced from the people it serves. Indeed, Professor Barnett has argued, in the context of the challenge to the Patient Protection and Affordable Care Act, that, “[i]f Congress can mandate that citizens do anything that is convenient to its regulation of the national economy,” then sovereignty lies with the federal government rather than the people and “Congress has the prerogative powers of King George III.”

But that is not right: unlike an unelected king, Congress is not an entity separate from the people – it is the people. And if the people don’t like the individual mandate, or indeed any federal policy, they have ample means at their disposal to make that view known to their congressional representatives, as indeed many have since the Affordable Care Act became law.

The people, moreover, cannot reliably be expected to enforce the Constitution. When the Court reviews a Congressional enactment, it is engaged in the process of determining the law’s constitutional validity, a process dictated by established doctrines that describe the boundaries of acceptable Congressional action and at the same time respect the limits of the judiciary’s institutional role in our governmental system. These doctrines serve to direct and constrain judicial discretion, to push judges to exercise legal rather than political or emotional judgments about the action Congress has taken.

The repeal amendment, by contrast, invites the exercise of political and emotional judgments. People will favor the repeal of particular federal policies simply because they don’t like those laws. State legislative resolutions favoring repeal accordingly will be the result of passion, not reasoned judgment about the national policies Congress is constitutionally authorized to pursue.

In the end, then, proponents of the repeal amendment seek to achieve political and not necessarily constitutional goals. Luckily for them, we already have at hand the means through which we can control our representatives in Congress, and thereby control the reach of the federal government: they are called elections, every two years for Representatives, every six for Senators.

Lawrence Friedman

Changing Expectations of Privacy, One Facebook User at a Time

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

Technology – the Internet – made this possible. But it was not technology alone: millions of people have willingly given to Facebook their names, photos and other personal information. In exchange, they get access to a service that enables them to engage in a vast, new form of social interaction with anyone else who happens to be a Facebook user. All this accumulated information about its users, their price of admission, is Facebook’s greatest asset – it is the reason the company’s public offering has attracted such attention.

Of course, as Facebook develops new ways to monetize this asset, it must pay some attention to users’ anxiety about exactly that. A recent poll shows that most Facebook users report having “little or no faith that the company will protect their personal information.” Indeed, just 13 percent of users trust Facebook to guard their data, and “only 12 percent would feel safe making purchases through the site.”

But it’s not clear that these figures should give Facebook much pause. Mark Zuckerberg has succeeded in creating a service so wildly popular that it can count the vast majority of people under the age of 35 as users. And Facebook is committed to the constant enhancement of the experience of its users, so that they will continue willingly to give up information about themselves. By seeking to establish Facebook as the default platform for social networking and communication, moreover, Zuckerberg and his team are transforming the use of Facebook into a virtual necessity for living in the modern world.

Regardless of their concerns, then, every one of its users is helping Facebook to change societal expectations about the nature and limits of privacy – about what information can and should be deemed ours and ours alone. That change is the basis for Facebook’s promise to its shareholders – the promise that it will never stop trying to find ways to enhance its ability to discover all that it can about its users. Facebook will realize its full potential for shareholders when it can predict what its users want, perhaps even before they know themselves. That was once something we could state with confidence only of close friends and family.

Lawrence Friedman

Charles Taylor Convicted of War Crimes and Crimes Against Humanity

The Special Court for Sierra Leone announced earlier today that Charles Taylor, the former President of Liberia, was convicted on all counts of an 11-count indictment, which alleged that he was responsible for crimes committed by rebel forces during Sierra Leone’s decade-long civil war. The Special Court’s Trial Chamber found unanimously that Mr. Taylor aided and abetted RUF and AFRC rebels in the commission of war crimes and crimes against humanity in Sierra Leone.  This conviction is significant and historic for many reasons, not the least of which is that Charles Taylor is the first head of state to be indicted, tried, and convicted by an international tribunal.

The Trial Chamber also released a judgment summary and stated that the full judgment will be released at a later date.  An item of particular interest in the judgment summary is how the trial chamber dealt with Taylor’s liability even though the evidence did not show that he personally committed the crimes charged in the indictment.  The trial chamber first considered Taylor’s liability under the well recognized doctrine of command responsibility.  Under Article 6(3) of the applicable statute a superior is criminally responsible if the superior knew or had reason to know that his or her subordinate was about to commit crimes prohibited by the Statute or had done so, and the superior failed to take the necessary and reasonable measures to prevent or punish the perpetrators.

The Trial Chamber found that Taylor knew or had reason to know that the forces operating in Sierra Leone were committing the crimes charged in the indictment.  However, the Trial Chamber noted that the prosecution must also demonstrate that the superior had effective “command and control” over his subordinates – i.e. the material ability to prevent or punish the commission of the offense.  Here the trial chamber found that the prosecution failed to prove Taylor’s command and control over these forces.  At most, the prosecution could only prove that Taylor had substantial influence over the leadership of the RUF and AFRC forces and that Taylor provided guidance, support, and advice to the RUF and AFRC leadership, but that did not rise to the level of command and control.  Accordingly, the Trial Chamber rejected Taylor’s liability under the doctrine of command responsibility.

Instead the Trial Chamber assessed Taylor’s liability as an aider and abettor.  The prosecution’s theory was that Taylor provided practical assistance, encouragement, or moral support, and these acts had a substantial effect on the perpetration of the crimes charged in the Indictment, and that Taylor had a clear intent to act in support of those crimes.  What is most interesting about this alternative theory is that, while the prosecution did not have to prove that Taylor had command and control over the forces, they had to prove that Taylor knew that his acts would assist the commission of the crime by the perpetrator, or that he was aware of the substantial likelihood that his acts would assist the commission of a crime by the perpetrator. In cases of specific intent crimes, such as acts of terrorism, Taylor must also be aware of the specific intent of the perpetrator.  This is a higher mens rea standard than the prosecution would have to prove under the command responsibility theory, under which the prosecution is only required to show that Taylor knew or had reason to know about the crimes being committed by the RUF and AFRC.

Interestingly, the Trial Chamber found that the prosecution established Taylor’s criminal liability under this aider and abettor theory.  The judgment summary does not provide specific facts that the Trial Chamber relied on to determine that the prosecution satisfied this heightened mens rea requirement. This will be something to pay attention to when the full judgment is released.

Repealing Same-Sex Marriage in New Hampshire

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

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

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

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

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

Lawrence Friedman

Ninth Circuit Concludes Proposition 8 Is Unconstitutional

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

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

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

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

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

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

Lawrence Friedman

The Supreme Court Strikes Down Warrantless GPS Monitoring

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

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 essay 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

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!

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

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

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

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?

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

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

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

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

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