April 22, 2015
Creeping Doctrines / Shifting Fees
Too often the catch-all term “intellectual property”— useful in describing practitioner specialty areas, law school courses, and text books, among other things— serves a subtly insidious function. It suggests that those discrete bodies of law which it encompasses—roughly, copyright, trademark, patent, and trade secret law—have fundamental commonality. Not only, it implies, do those legal areas overlap, but more critically that those overlaps somehow count for more than any divergences.
This has a real effect on the development of the law. Courts are quick to presume that a rule applicable to one area of intellectual property ought to apply to all. The burden, it seems, is on one challenging such an extension to show why a given area of law, say trademark law, is distinct enough from another, such as patent law, so that a rule for one should not apply to another. The courts, for instance, over the past decade worked to extend a rule from a 2006 patent case that denies prevailing patent infringement plaintiffs entitlement to injunctive relief (eBay Inc v. MercExchange) to copyright and trademark law. We are now seeing that process inexorably repeat itself with respect to statutory fee-shifting.
To be sure, there is a clear, natural and forceful argument as to why the fee-shifting rules for patent law ought to be the same as those in trademark law. To start with, federal trademark law’s Lanham Act and the U.S. Patent Act contain identical statutory fee-shifting language. Namely, “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” When the Lanham Act was amended in the 1970s to add this provision, moreover, the Senate committee proposing the change made clear that it was intending to make trademark law more like patent law (which had operated under such language since the 1950s).
This apparently deliberate act of statutory duplication has led two appellate courts recently to conclude, with relative ease, that the two provisions should be interpreted in the same way. More specifically, both suggested (one in a holding last fall and one in dicta a little over two weeks ago) that the U.S. Supreme Court’s recent clarification of the meaning of the statutory language in the Patent Act in Octane Fitness, LLC v. INCO Health & Fitness, Inc., ought to apply with equal force to the Lanham Act. See, respectively, Fair Wind Sailing, Inc. v. Dempster and Slep-Tone Entertainment Corp. v. Karaoke Kandy Store, Inc. The Supreme Court itself appeared to telegraph the propriety of such as result when it cited, in its Octane opinion, a trademark case and noted the “identical” nature of the two provisions.
The issue, though, is hardly as straightforward as these courts make it seem. There remain strong contrary arguments against conflating the two standards. Although it is of course a rule of statutory interpretation that similar language should be construed in a similar way, “pari passu,” that rule is usually coupled with the limitation that it applies to statutes enacted “for the same purpose.” The primary purposes of the Lanham Act are to make consumer purchasing decisions easier and safer by insuring the integrity of brand information in the marketplace and to protect brand good-will from misappropriation (i.e., to protect consumers and brands). The primary purpose of the Patent Act, by stark contrast, is to encourage the creation and disclosure of new inventions by granting exclusive rights for limited times to inventors (i.e., to incentivize innovative activity). As a direct consequence of these differing purposes, for well over a century the U.S. Supreme Court has held that the foundational Patent and Copyright Clause of the U.S. Constitution, Article I, Section 8, Clause 8, does not apply to trademark law.
Second, Octane was decided in an atmosphere steeped in the purported problem of patent trolls—those much-maligned entities alleged to assert frivolous patent claims without actually making or selling patented products, while often engaging in litigation misconduct. In rejecting the stingy objective baselessness and frivolity standards previously used by the Federal Circuit for awarding attorney’s fees, the Octane decision opened the door to more opportunities for prevailing defendants to receive attorney’s fees. This should, in the words of Octane, deter a patent plaintiff from bringing a borderline case that “stands out from others with respect to the substantive strength of a party’s litigating position” or litigating them in an “unreasonable manner.” Octane itself, for instance, was a case where a prevailing defendant claimed a right to attorney’s fees against a losing patent-owning plaintiff that had asserted a weak patent infringement claim.
Trademark law, though, has had nothing close to the “troll” problems faced by patent or even copyright law because it contains built-in checks against trolling. A trademark infringement plaintiff must actually use its trademark to have rights in it, and must show a likelihood of confusion in a real marketplace to prevail on its claim.
Consistent with this view, the (remarkably terse) legislative history of the fee-shifting amendments to the Lanham Act makes clear that they were designed firstly to aid prevailing plaintiffs seeking attorney’s fees against counterfeiting defendants. In fact, the Senate Report contains a definition of “exceptional cases” that defines the term using language only relevant to losing defendants (“i.e., in infringement cases where the acts of infringement can be characterized as ‘malicious,’ ‘fraudulent,’ ‘deliberate,’ or ‘willful.’”). Although the statutory language clearly applies to prevailing parties of either stripe, this legislative emphasis on preventing counterfeiting by trademark defendants at a minimum counsels against knee-jerk extensions of a rule designed to reign in patent plaintiffs.
All of this is not meant to suggest that there aren’t good reasons for applying the Octane standard to trademark cases. Some might even suggest that general civil litigation in the U.S. would benefit from giving district courts more discretion to award attorney’s fees to all prevailing parties. But it does counsel against an all-to-easy rush to superimpose patent or copyright law rules onto trademark law. All three may be forms of “intellectual property,” but hopefully courts considering the issue (such as the United States District Court for the Northern District of Ohio as it picks up the Slep-Tone case on remand) will not make the mistake of presuming that what is good law for one must be so for the others.
Peter Karol
April 21, 2015
Memory Battles and National Human Rights Trials
This post originally appeared on the IntLawGrrls blog, available here.
I teach transitional justice at New England Law | Boston, and this past week I began the unit on national human rights trials. This topic is one of my favorites due largely to my experience observing national human rights trials like that of former Peruvian President Alberto Fujimori and former Guatemalan leader José Efraín Ríos Montt. Fujimori is currently serving a twenty-five year sentence in Peru for his role in serious human rights crimes during the 1990s while president; while Ríos Montt has been under house arrest awaiting the resumption of his trial since 2013, when the Guatemalan Constitutional Court pointed to procedural errors as a reason to annul his conviction for crimes against humanity and genocide for his role in massacres of indigenous communities in 1982–83.
While observing both trials, I was fascinated by the media coverage of these proceedings and how the local coverage of these historical trials impacted public debates outside of the courtroom. My own research and writing on this topic seeks to respond to the fact that, generally speaking, we often forget the important role of media in transmitting the content of human rights trials although it can dramatically influence the overall transitional justice process.
In my recent article, “Memory Battles: Guatemala’s Public Debates and the Genocide Trial of José Efraín Ríos Montt,” I conducted a systematic evaluation of news reports and opinion pieces from local news outlets to study the nuances of Guatemala’s debate over whether or not the country had suffered a genocide. What I discovered was a “memory battle” about interpretations of the past war. Based on these findings, I challenge the idea that transitional justice mechanisms will naturally lead to a collective memory that results in a widespread societal condemnation of human rights violations. Instead, I draw from the field of memory studies to debunk the assumption that there is a smooth path towards a national narrative about atrocity. Different societal actors accompany the transitional justice process, actively and purposefully seeking to use judicial and non-judicial justice mechanisms to construct public memories that fit within their own interpretations and political agendas resulting in many contested versions of the past.
This situation presents a paradox for transitional justice advocates: on the one hand, tolerating expression of different interpretations and opinions of the past promotes the ideals of democracy. However, when versions of the past justify or explain away atrocity, they challenge the political project of building a culture of rights and the rule of law. I decided to examine how this paradox plays out when a transitional justice project includes national criminal trials given that most scholarship focuses more directly on the relationship between truth commissions and memory. I found that, up until now, scholars often wrote about memory and trials based on theoretical speculations as opposed to empirical research. This narrow focus can best be explained by the fact that transitional justice evolved as a response to the inability or unwillingness to conduct criminal trials, a trend that has begun to change only in the last decade with a rise in national human rights trials especially in Latin America.
I conclude my article by arguing that a country’s long-term interpretation of its past, and its agenda for the future, depends on which camp of memory-makers in a transitional justice setting wins this memory battle. It is my position that a collective memory is the first step towards cultivating its collective consciousness, which leads to a conscience that can influence how its members buy into this culture of rights, accountability, equality, and other essential attributes to sustainable peace. Importantly, it is often the nature of the memory making process itself, as opposed to a final memory product that predicts the outcome of memory surrounding national human rights trials.
Based on my close study of the media and memory-making in transitional justice settings, I strongly recommend that any new transitional justice project should consciously contemplate the role of memory production in its design and implementation.
Lisa J. Laplante
I teach transitional justice at New England Law | Boston, and this past week I began the unit on national human rights trials. This topic is one of my favorites due largely to my experience observing national human rights trials like that of former Peruvian President Alberto Fujimori and former Guatemalan leader José Efraín Ríos Montt. Fujimori is currently serving a twenty-five year sentence in Peru for his role in serious human rights crimes during the 1990s while president; while Ríos Montt has been under house arrest awaiting the resumption of his trial since 2013, when the Guatemalan Constitutional Court pointed to procedural errors as a reason to annul his conviction for crimes against humanity and genocide for his role in massacres of indigenous communities in 1982–83.
While observing both trials, I was fascinated by the media coverage of these proceedings and how the local coverage of these historical trials impacted public debates outside of the courtroom. My own research and writing on this topic seeks to respond to the fact that, generally speaking, we often forget the important role of media in transmitting the content of human rights trials although it can dramatically influence the overall transitional justice process.
In my recent article, “Memory Battles: Guatemala’s Public Debates and the Genocide Trial of José Efraín Ríos Montt,” I conducted a systematic evaluation of news reports and opinion pieces from local news outlets to study the nuances of Guatemala’s debate over whether or not the country had suffered a genocide. What I discovered was a “memory battle” about interpretations of the past war. Based on these findings, I challenge the idea that transitional justice mechanisms will naturally lead to a collective memory that results in a widespread societal condemnation of human rights violations. Instead, I draw from the field of memory studies to debunk the assumption that there is a smooth path towards a national narrative about atrocity. Different societal actors accompany the transitional justice process, actively and purposefully seeking to use judicial and non-judicial justice mechanisms to construct public memories that fit within their own interpretations and political agendas resulting in many contested versions of the past.
This situation presents a paradox for transitional justice advocates: on the one hand, tolerating expression of different interpretations and opinions of the past promotes the ideals of democracy. However, when versions of the past justify or explain away atrocity, they challenge the political project of building a culture of rights and the rule of law. I decided to examine how this paradox plays out when a transitional justice project includes national criminal trials given that most scholarship focuses more directly on the relationship between truth commissions and memory. I found that, up until now, scholars often wrote about memory and trials based on theoretical speculations as opposed to empirical research. This narrow focus can best be explained by the fact that transitional justice evolved as a response to the inability or unwillingness to conduct criminal trials, a trend that has begun to change only in the last decade with a rise in national human rights trials especially in Latin America.
I conclude my article by arguing that a country’s long-term interpretation of its past, and its agenda for the future, depends on which camp of memory-makers in a transitional justice setting wins this memory battle. It is my position that a collective memory is the first step towards cultivating its collective consciousness, which leads to a conscience that can influence how its members buy into this culture of rights, accountability, equality, and other essential attributes to sustainable peace. Importantly, it is often the nature of the memory making process itself, as opposed to a final memory product that predicts the outcome of memory surrounding national human rights trials.
Based on my close study of the media and memory-making in transitional justice settings, I strongly recommend that any new transitional justice project should consciously contemplate the role of memory production in its design and implementation.
Lisa J. Laplante
April 2, 2015
Texas v. United States
Judicial opinions are written to persuade. Perhaps this is the reason why Judge Hanen’s opinion in Texas v. United States resorts to truncated arguments, neglecting to discuss the opposing position. Furthermore, nowhere in the opinion does the judge indicate the devastating effect that the opinion will have on the people involved. Instead of focusing on the families that are at risk of being ripped apart through deportation as a result of his decision, Judge Hanen portrays the battle as an abstract political one between states that “bear the brunt of illegal immigration” while the (incompetent?) “powers that be” in the capitol are “rubberstamp[ing]” applications to avoid deportation or giving them only a “pro forma review.” No matter how long an opinion is—and this one is more than 120 pages long—it will sound polemical instead of persuasive if it does not recognize the other side’s arguments.
Among other things, Judge Hanen’s opinion holds illegal the decision by Jeh Johnson, Secretary of the Department of Homeland Security, to limit removal actions against some parents of citizens and permanent residents. The United States had claimed that this decision was not subject to judicial review under the federal Administrative Procedure Act on the grounds that it was a discretionary prosecutorial decision. Judge Hanen disagreed, holding that it was reviewable because, among other things, the statute used the term “shall” in relation to deportation instead of “may.” The judge’s handling of this one small point—the interpretation of “shall” in the statute—is illustrative of his failure to voice the United States’ argument in any but the weakest way. Similarly, his reluctance, in discussing this point, to recognize what is at stake for the families involved may show his fear that doing so would make the reader less sympathetic to his position.
This is certainly not the first time that a court has had to interpret a statutory instruction expressed through the word “shall.” The United States Supreme Court took up the issue in Town of Castle Rock v. Gonzales, holding that the statute there, which said that the local police department “shall arrest” those who violated domestic violence restraining orders, gave the local police discretion as to whether to arrest or not. Judge Hanen’s failure to deal with this case or with similar cases shows his effort to persuade through blunt assertion instead of through legal analysis.
Justice Scalia, writing for the Court in Castle Rock, denied that a mandatory arrest statute requires the police to make arrests for domestic violence restraining order violations. Instead, he said, “We do not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory.” (Emphasis in the original). He followed this with a lengthy discussion showing that police discretion to arrest has long “coexisted” with statutory mandatory arrest language. He also questioned how mandatory arrest would work in a setting, like plaintiff Gonzales’s, in which the person violating the restraining order is not present. Scalia’s point is that the statute cannot mean what it says because it would not be workable in that form. Furthermore, he engaged directly with the dissenting Justices’ position that other states have found mandatory arrest statutes in the context of domestic violence to be “more mandatory” than in other contexts.
In contrast, Judge Hanen in Texas v. United States paid only very quick lip service to the fact that some interpret “shall” as “may” before concluding that “shall” in the applicable statute is “imperative” and deprives the Department of the “right to do something that is clearly contrary to Congress’ intent.” There is no mention of Castle Rock or of any other similar case, except for one low-level Board of Immigration Appeals (BIA) decision. The implication is that this position is not worth considering. This is confusing since immediately prior to this conclusion, he wrote that “DHS does have the discretion . . . to determine how it will effectuate its statutory duty and use its resources where they will do the most to achieve the goals expressed by Congress.” Given this, one would have thought the interpretation of “shall” would be a more complicated problem for him. What comes through to the reader from Judge Hanen’s very brief analysis is that he is upset that the government has announced that it will not enforce the removal laws against “a class of millions of individuals” despite the unmentioned fact that it is continuing to enforce them—at what many consider to be the highest rate ever—against others.
Similarly, Justice Scalia in his opinion in Castle Rock recognized the powerful effect that his reading of the statute would have on powerless members of our society. It took him several paragraphs to recount the story of the abduction and murder of Gonzales’s children by her ex-husband who violated a restraining order; Scalia also detailed the police’s delaying tactics and refusal to do anything about the violation. This opinion, too, is written to persuade, but the sympathetic portrayal of the harm done by the failure to arrest helps to convince the reader that Scalia was aware of the horrific pain inflicted. In contrast, the reader of Texas v. United States does not have any reason to believe that Judge Hanen understood the devastating pain that could be inflicted by tearing families apart. His lack of empathy for the victims of his approach makes the opinion sound even more one-sided than it might otherwise.
It is this anxiety to persuade through a one-sided approach and the unwillingness to admit to the harm done by the decision’s result that hopefully will be remedied on appeal, regardless of the ultimate outcome.
Judith G. Greenberg
Among other things, Judge Hanen’s opinion holds illegal the decision by Jeh Johnson, Secretary of the Department of Homeland Security, to limit removal actions against some parents of citizens and permanent residents. The United States had claimed that this decision was not subject to judicial review under the federal Administrative Procedure Act on the grounds that it was a discretionary prosecutorial decision. Judge Hanen disagreed, holding that it was reviewable because, among other things, the statute used the term “shall” in relation to deportation instead of “may.” The judge’s handling of this one small point—the interpretation of “shall” in the statute—is illustrative of his failure to voice the United States’ argument in any but the weakest way. Similarly, his reluctance, in discussing this point, to recognize what is at stake for the families involved may show his fear that doing so would make the reader less sympathetic to his position.
This is certainly not the first time that a court has had to interpret a statutory instruction expressed through the word “shall.” The United States Supreme Court took up the issue in Town of Castle Rock v. Gonzales, holding that the statute there, which said that the local police department “shall arrest” those who violated domestic violence restraining orders, gave the local police discretion as to whether to arrest or not. Judge Hanen’s failure to deal with this case or with similar cases shows his effort to persuade through blunt assertion instead of through legal analysis.
Justice Scalia, writing for the Court in Castle Rock, denied that a mandatory arrest statute requires the police to make arrests for domestic violence restraining order violations. Instead, he said, “We do not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory.” (Emphasis in the original). He followed this with a lengthy discussion showing that police discretion to arrest has long “coexisted” with statutory mandatory arrest language. He also questioned how mandatory arrest would work in a setting, like plaintiff Gonzales’s, in which the person violating the restraining order is not present. Scalia’s point is that the statute cannot mean what it says because it would not be workable in that form. Furthermore, he engaged directly with the dissenting Justices’ position that other states have found mandatory arrest statutes in the context of domestic violence to be “more mandatory” than in other contexts.
In contrast, Judge Hanen in Texas v. United States paid only very quick lip service to the fact that some interpret “shall” as “may” before concluding that “shall” in the applicable statute is “imperative” and deprives the Department of the “right to do something that is clearly contrary to Congress’ intent.” There is no mention of Castle Rock or of any other similar case, except for one low-level Board of Immigration Appeals (BIA) decision. The implication is that this position is not worth considering. This is confusing since immediately prior to this conclusion, he wrote that “DHS does have the discretion . . . to determine how it will effectuate its statutory duty and use its resources where they will do the most to achieve the goals expressed by Congress.” Given this, one would have thought the interpretation of “shall” would be a more complicated problem for him. What comes through to the reader from Judge Hanen’s very brief analysis is that he is upset that the government has announced that it will not enforce the removal laws against “a class of millions of individuals” despite the unmentioned fact that it is continuing to enforce them—at what many consider to be the highest rate ever—against others.
Similarly, Justice Scalia in his opinion in Castle Rock recognized the powerful effect that his reading of the statute would have on powerless members of our society. It took him several paragraphs to recount the story of the abduction and murder of Gonzales’s children by her ex-husband who violated a restraining order; Scalia also detailed the police’s delaying tactics and refusal to do anything about the violation. This opinion, too, is written to persuade, but the sympathetic portrayal of the harm done by the failure to arrest helps to convince the reader that Scalia was aware of the horrific pain inflicted. In contrast, the reader of Texas v. United States does not have any reason to believe that Judge Hanen understood the devastating pain that could be inflicted by tearing families apart. His lack of empathy for the victims of his approach makes the opinion sound even more one-sided than it might otherwise.
It is this anxiety to persuade through a one-sided approach and the unwillingness to admit to the harm done by the decision’s result that hopefully will be remedied on appeal, regardless of the ultimate outcome.
Judith G. Greenberg
July 20, 2014
In Memoriam: Dan Markel (1972-2014)
Those inside and outside the legal academy are still coming
to terms with the sudden and tragic loss of Florida State University law
professor Dan Markel, who was shot and killed at his Tallahassee home on
Friday. Dan touched the lives of
hundreds of students and colleagues. I
was fortunate to know him since law school, and wanted to share some
(admittedly scattered) memories of a friend lost too soon.
Even as a 1L, when most of us felt uncertain and trembling
about our career decisions (or even just making it through the next class), Dan
carried a certain unusual confidence. In
criminal law, he argued in favor of sending people to “virtue schools.” He lugged his old Macintosh laptop to all
classes, dragging the plug carefully across the floor behind his classmates’
chairs. On Saturday afternoons after
synagogue, he was known to offer friends a mean vegetarian chopped liver. He was a character, and a sincere one.
I lost daily contact with Dan after we graduated in 2000,
but he resurfaced in my consciousness one day in 2005, when he launched Prawfsblawg. I was in private practice and enjoying it,
but reading the academic posts by Dan and his friends added a powerful new
dimension to the legal issues I was contemplating. I wanted to be part of it. An in 2009, when I finally decided to break
into the legal academy, Dan warmly and cheerfully facilitated my introduction
to colleagues far and wide. He reviewed
my early scholarship. Even though I
wrote in civil procedure and he in criminal law, he connected me to the right
people almost effortlessly. Later, after
I joined the New England Law faculty, he encouraged me to guest blog at Prawfs,
which I have done and enjoyed on more than one occasion.
It is remarkable that someone would do so much to help an old
classmate who had been out of sight and out of mind for almost a decade. But that was just Dan being Dan. The outpouring of grief at his loss on
Facebook and Prawfsblawg is a testament to how many lives he touched. He was taken too young, and we will miss him
greatly. Baruch Dayan Emet.
May 15, 2014
Media and Transitional Justice: A Complex, Understudied Relationship
I first became interested in the role of media in transitional justice settings in 2009, while directing a monitoring project of the human rights trial of former Peruvian President Alberto Fujimori. In the course of the project, the local press coverage of the trial drew my attention, with its explosive and provocative headlines often focused less on the proceedings of the trial as it was on scandal and speculation about the defendant and the victims.
I wondered how public consumption of these accounts contributed to the overall success (or not) of Peru’s transitional justice project. In my scholarly pursuit of thinking through this question, I was amazed to discover that few transitional justice scholars had examined it. Moreover, few countries have consciously considered the role of the media in the design of their transitional justice strategies.
How did we miss this central question? I think, in part, because assumptions about journalism and how it functions have insulated it from academic or practitioner scrutiny. For example, it is assumed that the media will automatically perform in a way consistent with the ‘canons’ of the journalistic profession and, moreover, that traditional peace-time approaches to journalism are the best suited for transitioning societies.
However, my observations compel me to take the stand that we need to question these assumptions, and for that reason I welcome ICTJ’s online debate.
Lisa Laplante
Professor Laplante directs New England Law's Center for International Law and Policy. Her blog post is part of an online debate on “Should the Media Actively Support Transitional Justice Efforts?” Her complete essay and those of other debaters are available on the International Center for Transitional Justice (ICTJ) website.
I wondered how public consumption of these accounts contributed to the overall success (or not) of Peru’s transitional justice project. In my scholarly pursuit of thinking through this question, I was amazed to discover that few transitional justice scholars had examined it. Moreover, few countries have consciously considered the role of the media in the design of their transitional justice strategies.
How did we miss this central question? I think, in part, because assumptions about journalism and how it functions have insulated it from academic or practitioner scrutiny. For example, it is assumed that the media will automatically perform in a way consistent with the ‘canons’ of the journalistic profession and, moreover, that traditional peace-time approaches to journalism are the best suited for transitioning societies.
However, my observations compel me to take the stand that we need to question these assumptions, and for that reason I welcome ICTJ’s online debate.
Lisa Laplante
Professor Laplante directs New England Law's Center for International Law and Policy. Her blog post is part of an online debate on “Should the Media Actively Support Transitional Justice Efforts?” Her complete essay and those of other debaters are available on the International Center for Transitional Justice (ICTJ) website.
May 11, 2013
Privacy and the Surveillance State
According to a recent New York Times/CBS News poll, Americans by a large margin favor installing video surveillance devices in public places in order to provide greater security, with 78 percent of participants saying such surveillance is a good idea.
The poll was taken in the wake of the bombings in Boston on Marathon Monday and the results likely reflect the very real anxiety that such horrific events can produce. The positive reaction to greater surveillance is natural and understandable. But that does not necessarily mean that it will lead to sound public policy.
It remains that it is always easier to give away someone else's privacy interests, especially hypothetically. Most people cannot imagine ever being the target of government surveillance—for them, the potentially ubiquitous video recording devices will be aimed at someone else.
That is fine as far as it goes, but the fact is that, under the Fourth Amendment doctrine for determining whether you have a protectable privacy right as against the government, the Supreme Court has repeatedly said that any expectation of privacy you assert must be objectively reasonable. We all do lots of things in public that we assume to be private—like talking on cell phones, text messaging, and even having a conversation with the person walking next to you, and believe the assumption to be reasonable because we do not really expect anyone nearby actually to listen to what we are saying or texting. But the fact that someone could do so, according to the Court, eliminates any true expectation of privacy. And even if that were not the case, could we say any of these communications reasonably should be deemed private when the government has the capacity to record and review all of them?
It could be argued that the problem lies not in our actual expectations but in Fourth Amendment doctrine itself. But despite noises from some justices in recent years—like Justice Sotomayor's concurring opinion in the GPS case from last year, United States v. Jones—it's far from clear that a major doctrinal shift is coming.
What is interesting, though, is that just as we seem willing to allow the government greater surveillance capabilities, we balk at the potential of new technology like Google Glasses to allow people to accomplish a similar end, by surreptitiously taking photos and short videos of anyone who happens to be nearby. Perhaps it is the fact that this technology allows our privacy to be invaded without our knowledge or consent that so bothers us. Whatever the reason, legislators in many state and local governments have begun exploring efforts to regulate these Google devices, which are not yet on the market.
Such regulation would seem to indicate that people are at least somewhat concerned to maintain some degree of privacy in public. But more than anything it reveals our ambivalence about privacy. Trading privacy for security seems like good policy to many, but it's worth remembering that the constitutional expectation of privacy test historically has functioned as a one-way ratchet, with the scope of privacy as against the government continually being diminished as it becomes more difficult to maintain that expectations of privacy are reasonable.
Lawrence Friedman
The poll was taken in the wake of the bombings in Boston on Marathon Monday and the results likely reflect the very real anxiety that such horrific events can produce. The positive reaction to greater surveillance is natural and understandable. But that does not necessarily mean that it will lead to sound public policy.
It remains that it is always easier to give away someone else's privacy interests, especially hypothetically. Most people cannot imagine ever being the target of government surveillance—for them, the potentially ubiquitous video recording devices will be aimed at someone else.
That is fine as far as it goes, but the fact is that, under the Fourth Amendment doctrine for determining whether you have a protectable privacy right as against the government, the Supreme Court has repeatedly said that any expectation of privacy you assert must be objectively reasonable. We all do lots of things in public that we assume to be private—like talking on cell phones, text messaging, and even having a conversation with the person walking next to you, and believe the assumption to be reasonable because we do not really expect anyone nearby actually to listen to what we are saying or texting. But the fact that someone could do so, according to the Court, eliminates any true expectation of privacy. And even if that were not the case, could we say any of these communications reasonably should be deemed private when the government has the capacity to record and review all of them?
It could be argued that the problem lies not in our actual expectations but in Fourth Amendment doctrine itself. But despite noises from some justices in recent years—like Justice Sotomayor's concurring opinion in the GPS case from last year, United States v. Jones—it's far from clear that a major doctrinal shift is coming.
What is interesting, though, is that just as we seem willing to allow the government greater surveillance capabilities, we balk at the potential of new technology like Google Glasses to allow people to accomplish a similar end, by surreptitiously taking photos and short videos of anyone who happens to be nearby. Perhaps it is the fact that this technology allows our privacy to be invaded without our knowledge or consent that so bothers us. Whatever the reason, legislators in many state and local governments have begun exploring efforts to regulate these Google devices, which are not yet on the market.
Such regulation would seem to indicate that people are at least somewhat concerned to maintain some degree of privacy in public. But more than anything it reveals our ambivalence about privacy. Trading privacy for security seems like good policy to many, but it's worth remembering that the constitutional expectation of privacy test historically has functioned as a one-way ratchet, with the scope of privacy as against the government continually being diminished as it becomes more difficult to maintain that expectations of privacy are reasonable.
Lawrence Friedman
March 27, 2013
Reflecting on Gideon at 50
This month marks the 50th anniversary of Gideon v Wainwright, the Supreme Court’s celebrated decision establishing the constitutional right to counsel for indigent criminal defendants. The occasion provides much to commemorate, but also reminds us how far there is to go. Indeed, it has become commonplace to note that “Gideon’s Trumpet” (the title to the wonderful book by Anthony Lewis, who just passed way) has been “muted” by widespread violations of the right to counsel. Blame rests primarily with persistent underfunding of the defense function and the excessive caseloads that result. An assembly line of routinized pleas, in which lawyers engage in little or no advocacy on behalf of their clients, too often is the norm in courthouses across the country.
The extent of the problem is well-documented. According to the Constitution Project’s exhaustive study, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, underfunded and overworked public defenders:
"[A]re constantly forced to violate their oaths as attorneys because their caseloads make it impossible for them to practice law as they are required to do according to the profession’s rules. They cannot interview their clients properly, effectively seek their pretrial release, file appropriate motions, conduct necessary fact investigations, negotiate responsibly with the prosecutor, adequately prepare for hearings, and perform countless other tasks that normally would be undertaken by a lawyer with sufficient time and resources."
Nor is the problem new. Ever since Gideon was rendered, a parade of studies has documented continuous underfunding of indigent defense services and the problems that result. And while each report provides its own perspective, invariably the conclusion is the same: criminal defendants are represented too often by lawyers -- whether public defender, appointed counsel or otherwise—whose capacity to render adequate representation is severely limited. As Stephen Bright, president of the Southern Center for Human Rights, has recently stated, “The representation received by most poor people accused of crimes -- if they receive any at all—is a far cry from the constitutional requirement of ‘the guiding hand of counsel at every step in the proceedings’” contemplated by Gideon and its progeny.
Changing course after decades of neglect is not easy, although important efforts at reform are underway. They include litigation to produce greater compliance with Gideon’s demands. Currently pending before the Supreme Court of Florida, for example, is a case that, if successful, will permit public defenders in Miami-Dade County to decline new appointments and to withdraw from existing ones when caseloads, which can exceed 500 cases per attorney, become intolerable. Other efforts include promoting the independence of defense lawyers through the creation of statewide indigent defense commissions. New Mexico’s voters, for instance, recently approved a constitutional amendment creating an independent commission to oversee the provision of defense services to indigent clients and to promote a robust defense function. State bar associations have also taken a leading role. For example, Washington’s highest court recently adopted recommendations authored by the state’s bar association to cap caseloads at levels that, while still high, comply with national recommendations. Such efforts make meaningful contributions and must be encouraged.
Lasting solutions, however, will require resetting the political calculations that drive funding decisions, which in turn depend upon raising and sustaining public consciousness about the critical importance of adequate defense. Here, some feint glimmers of hope can be detected. For example, a new award-winning documentary that will premiere this summer on HBO, Gideon’s Army, tracks the stories of three brave public defenders in the Deep South who fight for justice for their clients despite the long odds against them. Also profiled in the film is an innovative Atlanta-based organization, called Gideon’s Promise, which works with public defense organizations and others to train and support frontline defenders. Other notable efforts to build public awareness include a new film by the Constitution Project narrated by Martin Sheen, Defending Gideon, and recent books on the importance of effective criminal defense (including Amy Bach’s excellent investigative account detailing the failings of the criminal justice process, Ordinary Injustice: How America Holds Court, and the just released book on Gideon itself, Chasing Gideon: The Elusive Quest for Poor People's Justice by Karen Houppert).
Time will tell whether these and other efforts can change the narrative about Gideon’s legacy. Optimists will view them as part of the arc toward ensuring a meaningful right to counsel, while pessimists may see them as part of the same story often retold. But all should agree that the time is long past to make Gideon’s promise a reality.
Tigran Eldred
The extent of the problem is well-documented. According to the Constitution Project’s exhaustive study, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, underfunded and overworked public defenders:
"[A]re constantly forced to violate their oaths as attorneys because their caseloads make it impossible for them to practice law as they are required to do according to the profession’s rules. They cannot interview their clients properly, effectively seek their pretrial release, file appropriate motions, conduct necessary fact investigations, negotiate responsibly with the prosecutor, adequately prepare for hearings, and perform countless other tasks that normally would be undertaken by a lawyer with sufficient time and resources."
Nor is the problem new. Ever since Gideon was rendered, a parade of studies has documented continuous underfunding of indigent defense services and the problems that result. And while each report provides its own perspective, invariably the conclusion is the same: criminal defendants are represented too often by lawyers -- whether public defender, appointed counsel or otherwise—whose capacity to render adequate representation is severely limited. As Stephen Bright, president of the Southern Center for Human Rights, has recently stated, “The representation received by most poor people accused of crimes -- if they receive any at all—is a far cry from the constitutional requirement of ‘the guiding hand of counsel at every step in the proceedings’” contemplated by Gideon and its progeny.
Changing course after decades of neglect is not easy, although important efforts at reform are underway. They include litigation to produce greater compliance with Gideon’s demands. Currently pending before the Supreme Court of Florida, for example, is a case that, if successful, will permit public defenders in Miami-Dade County to decline new appointments and to withdraw from existing ones when caseloads, which can exceed 500 cases per attorney, become intolerable. Other efforts include promoting the independence of defense lawyers through the creation of statewide indigent defense commissions. New Mexico’s voters, for instance, recently approved a constitutional amendment creating an independent commission to oversee the provision of defense services to indigent clients and to promote a robust defense function. State bar associations have also taken a leading role. For example, Washington’s highest court recently adopted recommendations authored by the state’s bar association to cap caseloads at levels that, while still high, comply with national recommendations. Such efforts make meaningful contributions and must be encouraged.
Lasting solutions, however, will require resetting the political calculations that drive funding decisions, which in turn depend upon raising and sustaining public consciousness about the critical importance of adequate defense. Here, some feint glimmers of hope can be detected. For example, a new award-winning documentary that will premiere this summer on HBO, Gideon’s Army, tracks the stories of three brave public defenders in the Deep South who fight for justice for their clients despite the long odds against them. Also profiled in the film is an innovative Atlanta-based organization, called Gideon’s Promise, which works with public defense organizations and others to train and support frontline defenders. Other notable efforts to build public awareness include a new film by the Constitution Project narrated by Martin Sheen, Defending Gideon, and recent books on the importance of effective criminal defense (including Amy Bach’s excellent investigative account detailing the failings of the criminal justice process, Ordinary Injustice: How America Holds Court, and the just released book on Gideon itself, Chasing Gideon: The Elusive Quest for Poor People's Justice by Karen Houppert).
Time will tell whether these and other efforts can change the narrative about Gideon’s legacy. Optimists will view them as part of the arc toward ensuring a meaningful right to counsel, while pessimists may see them as part of the same story often retold. But all should agree that the time is long past to make Gideon’s promise a reality.
Tigran Eldred
July 18, 2012
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.
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.
June 29, 2012
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
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
June 28, 2012
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
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
June 4, 2012
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
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
May 16, 2012
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
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
April 27, 2012
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.
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.
March 22, 2012
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
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
February 9, 2012
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
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
January 26, 2012
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
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
January 10, 2012
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
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
January 3, 2012
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
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
December 1, 2011
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.
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.
September 23, 2011
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?
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?
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