Fire Hydrant of Freedom
Politics, Religion, Science, Culture and Humanities => Science, Culture, & Humanities => Topic started by: Crafty_Dog on January 11, 2007, 02:59:14 PM
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Let There Be 'Blight'
Welcome to the post-Kelo world.
BY WILLIAM R. MAURER
Thursday, January 11, 2007 12:01 a.m. EST
SEATTLE--The city of Burien, Wash., recently decided that a piece of property owned by the seven Strobel sisters that had long housed a popular diner-style restaurant was not upscale enough for the city's ambitious "Town Square" development, which will feature condos, shops, restaurants and offices. Rather than condemn the property for a private developer and risk a lawsuit, Burien came up with a plan--it would put a road through the property, and the city manager told his staff to "make damn sure" it did. When a subsequent survey revealed that the road would not affect the building itself, but only sideswipe a small corner of the property, the staff developed yet another site plan that put the road directly through the building. A trial court concluded that the city's actions might be "oppressive" and "an abuse of power"--but allowed the condemnation anyway. The Washington Court of Appeals affirmed, and the Washington Supreme Court refused to hear the case.
Welcome to the post-Kelo world. The U.S. Supreme Court's 2005 decision made clear that the federal courts would not stop local governments across the country from condemning private property for economic development. While the court noted that states were free to provide greater protections for homes and small businesses if they chose, Washington state stands as evidence that a strong state constitution means little if the courts do not enforce it and local governments disregard it.
When Kelo came out, local governments and their lobbyists eagerly explained that ours was not a "Kelo state," and that the legislative efforts to restrict eminent-domain abuse in other states were unnecessary here. The Washington Constitution explicitly provides that "private property shall not be taken for private use" (except in very limited circumstances). "It can't happen here" became the oft-repeated message used to placate home and small business owners seeking legislative protections for their property.
When it comes to governmental abuse, "it can't happen here" really means "it is happening right now." Local governments are busily using mechanisms in state law to threaten neighborhoods and abuse property owners, and the state Supreme Court has repeatedly let them get away with it.
Shortly after Kelo, the Washington Supreme Court allowed the Seattle Monorail to permanently condemn a piece of property it needed only temporarily for a construction staging area. Once the monorail had completed that legitimate public use, it intended to sell the property at a premium to raise revenue. In this way, Washington courts now allow local governments to condemn more land than is necessary, for longer than is necessary, in the hopes that the government can play real-estate speculator with whatever is left.
The court also ruled that the meetings at which a local government determines which property to condemn could take place essentially in secret, with the only notice for property owners being a posting on an obscure government Web site. The court ignored the fact that computer usage among minorities, the elderly and the poor is significantly lower than in other segments of the population, and that it is these communities that traditionally have been the target of eminent-domain abuse.
Washington courts now defer to even the most extreme examples of governmental exploitation, exemplified by Burien's treatment of the Strobel sisters. So long as the government can manufacture a fig leaf of public use or possible public use for constitutional cover, local governments can take private property to transfer to other private entities or deliberately target properties not upscale enough for the bureaucrats' "vision."
The tools available for trampling constitutional rights are already there. Since the Kelo decision, municipalities have rediscovered Washington's Community Renewal Act, the local incarnation of statutes used to destroy working-class (and often minority) neighborhoods across the country in the 1950s and '60s. The government, under the act, can condemn an entire neighborhood and transfer the property to a private developer so long as the government finds that at least some property in the neighborhood is "blighted." Unfortunately, this statute is so broadly worded that practically every neighborhood in Washington meets the definition of "blight"--things like "obsolete platting" and "diversity of ownership" constitute "blight." The statute provides all the devices a mildly clever planner needs to pull off a Kelo-style taking.
Working-class neighborhoods are already feeling the pressure. Auburn recently declared much of its beautiful downtown "blighted," and adopted a Community Renewal Plan. One city manager explained that blight "means anything that impairs or arrests sound growth"--a hugely elastic definition. Similarly, Seattle is considering using the Community Renewal Act in the city's Rainier Valley, one of the most diverse neighborhoods in the nation.
Regardless of strong constitutional protections for private property, governments and courts now view eminent domain as an area where few if any restrictions exist. And not just in Washington. In probably the most appalling example, the U.S. Court of Appeals for the Second Circuit let stand a condemnation in which a developer in the Port Chester, N.Y., demanded that Bart Didden give him either $800,000 or a 50% share in Mr. Didden's property, which was slated to be a CVS pharmacy--or the developer would have the village condemn it. Mr. Didden refused; the next day, the village condemned his property to hand it over to the developer to construct a Walgreens. Tomorrow, the U.S. Supreme Court will consider whether to take the case.
Meanwhile, state and federal courts are turning redevelopment areas into Constitution-free zones, where the government can do what it wants with few or no restrictions. It doesn't have to be this way. Courts could force the government to comply with the state and federal constitutions. Local governments could limit their takings only to legitimate public uses. But until all three branches of government begin taking their constitutional obligations seriously, property owners across the country face the continued threat of eminent-domain abuse, regardless of what the state or federal constitution says.
Ask the Strobel sisters, who are now fighting for just compensation for a property that was never for sale in the first place.
Mr. Maurer is executive director of the Institute for Justice, Washington chapter, and the author of "A False Sense of Security: The Potential for Eminent-Domain Abuse in Washington," recently published by the Washington Policy Center. The Institute litigated the Kelo case and represents Bart Didden in his appeal to the U.S. Supreme Court.
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Sorry to throw two completely unrelated posts on this thread in short order, but both seem quite interesting:
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The Michael Nifong Scandal
The Duke rape hoax is redolent of past decades' phony child-abuse cases.
Thursday, January 11, 2007 12:01 a.m. EST
No one could have imagined, when the story began last March, how soon and completely that bit of shorthand--"the Duke University scandal"--would be transformed.
Scarcely 10 months after, the term is now almost universally understood as a reference to the operations of Michael Nifong, the Durham County district attorney (pictured nearby), whose abandonment of all semblance of concern about the merits of the rape and assault accusations against three Duke University students was obvious from the first. So was his abundant confidence while broadcasting comments on the guilt of the accused. He seemed a man immune to concerns for appearances as he raced about expounding on the case against the accused lacrosse players and calling them hooligans. He would hear nothing by way of concern from Duke administrators (seven months into this affair, the university president did find an opportunity to mention the accused students' right to a presumption of innocence)--and certainly none from the politically progressive quarters of the Duke faculty who lent their names to an impassioned ad thanking everyone who had come out to march in protest against the rape and assault of the exotic dancer; 88 faculty members signed it, among them such Duke luminaries as Alice Kaplan, author and student of fascism, and Frank Lentricchia, literary critic.
Unable to take part in the ad signing, Duke's administrators nonetheless found ways to identify with its spirit. Soon after news broke of the Duke athletes' alleged brutish sex crimes against a black woman, the administration undertook a well-publicized campaign targeting the entire lacrosse team for offensive behavior. President Richard Brodhead was, it seems, barely able to recover from the shock of his discovery that a party thrown by male jocks could occasion heavy drinking. And related loutish behavior. Not to mention a stripper. Lacrosse was suspended for the season, and the team coach, Mike Pressler, was shortly after forced to resign. Mr. Brodhead in due course reinstated the team, but on probation, and with conditions, i.e., no underage drinking and disorderly conduct, and no harassment. The members of other Duke organizations, sports teams included, which had sponsored parties where alcohol flowed freely and which had featured strippers--an informal count reveals at least 20 known to have done so--no doubt understood that they faced no similar disciplinary action. The reason for the moral-cleansing program devised for the lacrosse team could scarcely have been missed.
Mr. Nifong's confidence that he had nothing to fear from establishment opinion or from the leaders of the great university as he bounded about making hash of the rules of justice--prime among them the accused's right to a presumption of innocence--proved justified. And might have remained so longer but for the catastrophic effects of the accuser's unraveling stories.
Mr. Nifong is no anomaly--merely a product of the political times, a prosecutor who has absorbed all the clues about the sanctified status now accorded charges involving rape, child sex-abuse and accusations of racism. Which has in turn ensured their transformation into weapons of unequalled power. Like others before him, the DA quickly grasped the career possibilities open to him with such a case and proceeded accordingly--denouncing racism, and the rape and assault of a helpless black woman, and the Duke athletes guilty of these crimes in every media interview available to him (and they were many).
For all the public shock and fury over his behavior, there is little that is new or strange about Mr. Nifong. We have seen the likes of this district attorney, uninterested in proofs of innocence, willing to suppress any he found, many times in the busy army of prosecutors claiming to have found evidence of rampant child abuse in nursery schools and other child-care centers around the country in the 1980s and throughout most of the '90s. They built case after headline-making case charging the mass molestation of small children, and managed to convict scores of innocent Americans on the basis of testimony no rational mind could credit. Law officers who regularly violated requirements of due process in their effort to obtain a conviction, they grasped the special advantage that was theirs: that for a prosecutor dealing with molestation, and wearing the mantle of avenger, there was no such thing as excess, no limits to what could be said of the accused. In court, rules could be bent, any charges presented, and nonexistent medical evidence proclaimed as proof positive of the accusation.
In his role of avenger of a young black woman alleged to have been brutalized by white males, Mr. Nifong proceeded with similar assurance. His was a crusade. Who but enemies of the good would object? Confronted with hard questions about his evidence, whether from the defense or the press, Mr. Nifong answered that these challenges were all designed to intimidate the rape victim. More than once the DA suggested, as criticisms of his case multiplied, that he was himself a victim of the press. He could have had little complaint, last summer, about the New York Times, which provided its own reports on the Duke story. It maintained that that the DA's case had been distorted by the defense and that there was, in fact, a body of evidence that supported the decision to take the case to a jury. A close study of this work's wondrous logic, and of its body of evidence, should provide rich material for students of the press for years to come.
The jury to which Mr. Nifong played--the black population of Durham--duly helped re-elect him. This could not prevent his case of rape and abuse against the three Duke students from coming undone, thanks in part to his own heedless behavior but mainly to the accusing dancer herself, whose shifting stories and checkered past could not be hidden.
Mr. Nifong had, of course, nothing like the advantages of nursery school prosecutors: endearing 4- and 5-year-old witnesses clutching teddy bears, who came to court to recite lies they had been cajoled into inventing, about how the accused had raped and stabbed them, cut off the legs of animals--the kinds of charges mounted, against elderly Violet Amirault of Massachusetts and her adult children Cheryl and Gerald, proprietors of the respected Fells Acres Day School. Many like them were caught up in the era's whirlwind of accusation and sensational trials invariably leading to conviction, on which ambitious prosecutors built careers. Almost all those cases would ultimately be thrown out by appeals courts, most of the time not before those convicted had served long years and paid with the ruin of their lives.
Mr. Nifong's case has come undone long before any trial, fortunately for the three Duke students charged. They have had, nevertheless, a powerful taste of what it means to have been named and despised as perpetrators of abhorrent sexual crimes. I could go to prison for 30 years, Reade Seligmann, one of the accused, told the late Ed Bradley during a "60 Minutes" interview last October--and "for something that never happened"
Neither Mr. Seligman nor the other accused Duke students will ever have to contend with a punishment like the one meted out to Gerald Amirault, who was sentenced to a 30- to 40-year term for something that never happened--atrocious sex crimes that never took place, of which there was no physical evidence, or anything resembling a credible allegation. What did it matter that the child's testimony that resulted in Gerald's conviction had claimed rape with a large butcher's knife--one that had magically left not the slightest injury? The jury's most important duty was, the prosecutors informed them, to believe the children and show that they honored their testimony. The same young witness also testified that Gerald was accompanied by a green, silver and yellow robot, R2-D2, from "Star Wars."
What did it matter, either, that special judicial hearings about the Amiraults' prosecution had concluded that it was a travesty, that a tough panel of former prosecutors, the Governor's Board of Pardons, had virtually declared Gerald Amirault innocent and voted for commutation of his sentence--or that he was finally granted parole nearly three years ago, after nearly 18 years' imprisonment? He was almost immediately classified by Massachusetts's Sex Offenders Registry Board as a Level 3 offender. The kind, that is, deemed the most dangerous and most likely to re-offend. This bizarre classification, the board made clear, had to do with the number of counts of sex abuse charged to him--and the fact, too, that he continued to deny guilt. He now has to wear a large tracking device around his ankle, and obey a curfew confining him to the house from 11:30 p.m. to 6 a.m. every day. He has, not surprisingly, been unable to find a job. He is sustained, as ever, by the unstinting devotion of his family, and he grieves now mainly for the loss of the chance he had dreamed of in prison--of earning a salary and finally lightening the burden his wife had carried, uncomplaining and alone, during his years in prison. (He has recently been advised of pending legislation that will require him to pay $10 a day for the global positioning tag on his leg, that tracks him.)
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The Truth About Clarence Thomas
By JAN CRAWFORD GREENBURG
January 22, 2007; Page A14
Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive -- and demonstrably false. An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years.
That's not the standard storyline. Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia's dutiful apprentice, blindly following his mentor's lead. It's a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas's very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity. By his second week on the bench, he was staking out bold positions in the private conferences where justices vote on cases. If either justice changed his mind to side with the other that year, it was Justice Scalia joining Justice Thomas, not the other way around.
Much of the documentary evidence for this comes from the papers of Justice Harry Blackmun, who recorded the justices' votes and took detailed notes explaining their views. I came across vivid proof while reading the papers as part of my research for a book about how the Rehnquist Court -- a court with seven justices appointed by Republican presidents -- evolved into an ideological and legal disappointment for conservatives.
Justice Thomas's first term was especially interesting. He replaced legendary liberal icon Thurgood Marshall, and joined the court just a year after David Souter took William Brennan's seat. There appeared to be a solid conservative majority, with the court poised to finally dismember the liberal legacy of the Warren Court. But that year it instead lurched inexplicably to the left -- even putting Roe v. Wade on more solid ground.
Justice Thomas's first year on the job brought to life the adage that a new justice makes a new court. His entry didn't merely change the vote of the liberal justice he replaced. It turned the chessboard around entirely, rearranging ideological alliances. Justice Thomas acted as a catalyst in different ways, shoring up conservative positions in some cases and spurring others -- the moderate Justice Sandra Day O'Connor, in particular -- to realign themselves into new voting blocs.
Consider a criminal case argued during Justice Thomas's first week. It concerned a thief's effort to get out of a Louisiana mental institution and the state's desire to keep him there. Eight justices voted to side with the thief. Justice Thomas dissented, arguing that although it "may make eminent sense as a policy matter" to let the criminal out of the mental institution, nothing in the Constitution required "the states to conform to the policy preferences of federal judges."
After he sent his dissenting opinion to the other justices, as is custom, Justices Rehnquist, Scalia and Kennedy changed their votes. The case ended up 5-4.
Justice Thomas's dissents persuaded Justice Scalia to change his mind several times that year. Even in Hudson v. McMillan, the case that prompted the New York Times to infamously label Justice Thomas the "youngest, cruelest justice," he was again, initially, the lone dissenter. Justice Scalia changed his vote after he read Justice Thomas's dissent, which said a prison inmate beaten by guards had several options for redress -- but not under the Eighth Amendment's prohibition of "cruel and unusual punishment."
* * *
From the beginning, Justice Thomas was an independent voice. His brutal confirmation hearings only enforced his autonomy, making him impervious to criticism from the media and liberal law professors. He'd told his story, and no one listened. From then on, he did not care what they said about him.
Clarence Thomas, for example, is the only justice who rarely asks questions at oral arguments. One reason is that he thinks his colleagues talk too much from the bench, and he prefers to let the lawyers explain their case with fewer interruptions. But his silence is sometimes interpreted as a lack of interest, and friends have begged him to ask a few questions to dispel those suggestions. He refuses to do it. "They have no credibility," he says of critics. "I am free to live up to my oath."
But the forcefulness and clarity of Justice Thomas's views, coupled with wrongheaded depictions of him doing Justice Scalia's bidding, created an internal dynamic that caused the court to make an unexpected turn in his first year. Justice O'Connor -- who sought ideological balance -- moved to the left. With the addition of Chief Justice John Roberts and Associate Justice Samuel Alito, the court now is poised to finally fulfill the hopes of the conservative movement. As George W. Bush told his legal advisers early in his presidency, he wanted justices in "the mold of Thomas and Scalia." Interestingly, on President Bush's marquee, Justice Thomas got top billing.
Ms. Crawford Greenburg, legal correspondent for ABC News, is the author of "Supreme Conflict: The Inside Story for Control of the United States Supreme Court," published tomorrow by Penguin Press.
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An interesting read on some old Supreme Courst self-defense decisions:
http://www.davekopel.com/2A/LawRev/Self-Defense-Cases.htm
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ENSIGN, MURKOWSKI INTRODUCE BILL TO SPLIT NINTH CIRCUIT
Court’s Enormous Size, Inability to Handle Caseload Top Concerns
February 8, 2007
Washington, D.C. – Senators John Ensign (NV) and Lisa Murkowski (AK) introduced legislation today to split the Ninth Circuit Court of Appeals, the largest court in the country, because it is overburdened by an unmanageable caseload. Under this bill, Nevada, along with Alaska, Arizona, Idaho, Oregon, Montana and Washington, would be part of a new Twelfth Circuit.
“Because of its enormous and growing size, the Ninth Circuit does not have sufficient time to properly handle its caseload,” said Ensign. “For too long, people’s lives have been on hold because the Ninth Circuit is strained beyond its capacity. Justice delayed is justice denied.”
“The Ninth Circuit has become a circuit where justice is not swift and not always served,” said Senator Murkowski. “The legislation we are introducing today is intended to bring about the sensible reorganization of the Ninth Circuit. No one court can effectively exercise its power in an area that extends from the Arctic Circle to the tropics. The creation of a new Twelfth Circuit will go far in improving the efficiency and effectiveness of the current court and will establish a circuit which is more geographically manageable.”
“The sheer size of the Ninth Circuit makes its caseload simply unmanageable,” said Senator Ted Stevens, an original co-sponsor of the legislation. “This inevitably results in delays processing cases, and it also prevents the Court from dealing with unique problems in Alaska, Hawaii, and other small states. This legislation will remedy the Ninth Circuit’s limitations by creating two smaller, more efficient Courts. Separate courts will serve the people of each region better and help maintain consistency in caselaw.”
It takes the Ninth Circuit on average almost one year longer to handle a case when compared to other circuit courts around the country. Located in San Francisco, the court encompasses 20 percent of the population of the United States. Three of the states in its jurisdiction – Nevada, Arizona and Idaho – are among the top five fastest-growing states in the nation.
In addition to the size constraints, Ensign also raised concern over the San Francisco court’s ideological leaning, citing specifically the ruling that the Pledge of Allegiance is unconstitutional because it contains the phrase “under God.”
“Despite the need for an independent judiciary outside of the political arena, many of the court’s rulings reflect a set of values that are at odds with a majority of the people in Nevada. I’m hopeful that this bill will move forward so that Nevada residents are served by a court with a viewpoint closer to their own,” Ensign added.
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GLOBAL VIEW
Who Needs Jacques Bauer?
The Napoleonic Code is more conducive to counterterrorism than the U.S. Constitution.
BY BRET STEPHENS
Sunday, February 25, 2007 12:01 a.m. EST
Twenty-nine defendants went on trial earlier this month in a Spanish courtroom for complicity in the March 11, 2004 Madrid train bombings that killed 191 commuters and injured another 1,800. Among the accused: Jamal Zougam, a 33-year-old Moroccan immigrant who once ran a cell-phone business. In June 2001, Spanish police raided Mr. Zougam's apartment, where they found jihadist literature and the telephone numbers of suspected terrorists. But the Spaniards judged the evidence insufficient to arrest or even wiretap him. Today, the Moroccan is believed to have furnished the cellphones through which the train bombs were detonated.
In raiding Mr. Zougam's apartment, the Spanish were acting on a request from French investigative magistrate and counterterrorism supremo Jean-Louis Bruguiere. Earlier, Mr. Bruguiere had also warned the Canadian government about a suspicious Algerian asylum-seeker named Ahmed Ressam, but the Canadians took no real action. On Dec. 14, 1999 Mr. Ressam--a k a the Millennium Bomber--was arrested by U.S. customs agents as he attempted to cross the border at Port Angeles, Wash., with nitroglycerin and timing devices concealed in his spare tire.
It would be reassuring to believe that somewhere in the ranks of the FBI or CIA America has a Jean-Louis Bruguiere of its own. But we probably don't, and not because we lack for domestic talent, investigative prowess, foreign connections, the will to fight terrorism or the forensic genius of a Gallic nose. What we lack is a system of laws that allows a man like Mr. Bruguiere to operate the way he does. Unless we're willing to trade in the Constitution for the Code Napoleon, we are not likely to get it.
Consider the powers granted to Mr. Bruguiere and his colleagues. Warrantless wiretaps? Not a problem under French law, as long as the Interior Ministry approves. Court-issued search warrants based on probable cause? Not needed to conduct a search. Hearsay evidence? Admissible in court. Habeas corpus? Suspects can be held and questioned by authorities for up to 96 hours without judicial supervision or the notification of third parties. Profiling? French officials commonly boast of having a "spy in every mosque." A wall of separation between intelligence and law enforcement agencies? France's domestic and foreign intelligence bureaus work hand-in-glove. Bail? Authorities can detain suspects in "investigative" detentions for up to a year. Mr. Bruguiere once held 138 suspects on terrorism-related charges. The courts eventually cleared 51 of the suspects--some of whom had spent four years in preventive detention--at their 1998 trial.
In the U.S., Mr. Bruguiere's activities would amount to one long and tangled violation of the First, Fourth, Fifth, Sixth and Eighth Amendments to the Constitution. And that's not counting the immense legal superstructures that successive Supreme Courts have built over and around the Bill of Rights. In France, however, Mr. Bruguiere, though not without his critics, is a folk hero, equally at home with governments of the left and right. The main point in his favor is that whatever it is he's doing, it works.
"Every single attempt to bomb France since 1995 has been stopped before execution," notes a former Interior Ministry senior official. "The French policy has been [to] make sure no terrorist hits at home. We know perfectly well that foreign-policy triangulation is not sufficient for that, [even if] it helps us go down a notch or two in the order of priority [jihadist] targets. So we've complemented our anti-U.S. foreign policy with ruthless domestic measures."
That's something that U.S. civil libertarians, who frequently argue that the Bush administration should follow the "European model" of treating terrorism as a law-enforcement issue instead of a military one, might usefully keep in mind. As lawyers David Rivkin and Lee Casey argue in the forthcoming issue of The National Interest, "the [Napoleonic] Civil Law system offers considerable advantages to the state in combating terrorism--especially in terms of investigative tools and a level of secrecy--that are simply unavailable in the ordinary Common Law criminal prosecution and trial, at least as governed by the United States Constitution."
Again, review the contrasts between American and European practices. Except in limited circumstances, the U.S. does not allow pretrial detentions. But according to figures compiled by the U.S. State Department, 38% of individuals held in Italian prisons in 2005 were awaiting trial or the outcome of an appeal, while Spanish law allows for pre-trial detentions that can last as long as four years for terrorism suspects. In the U.S., the Posse Comitatus Act forbids the use of the military in law-enforcement work, and paramilitary units are relatively rare. By contrast, most European countries deploy huge paramilitary forces: Italy's Carabinieri; France's Gendarmerie Nationale; Spain's Guardia Civil.
Even Britain, which shares America's common law traditions, has been forced by Irish and now Islamist terrorism to resort to administrative detentions, trials without jury (the famous Diplock courts) and ubiquitous public surveillance. Wiretapping is authorized by the Home Secretary--that is, a member of the government--rather than an independent judge. In the early days of the Northern Irish "troubles," the government of Edward Heath placed some 2,000 suspects, without charge, in internment camps. Ironically, it was the decision to treat terrorists as ordinary criminals that led to the famous hunger strikes of Bobby Sands and his IRA crew.
All this calls into question the seriousness, if not the sincerity, of European complaints that under the Bush administration the U.S. has become a serial human-rights violator. Europeans have every right to be proud of civil servants like Mr. Bruguiere and a legal tradition that in many ways has been remarkably successful against terrorism. But that is not the American way, nor can it be if we intend to be true to a constitutional order of checks and balances, judicial review and a high respect for the rights of the accused. When President Bush declared a war on terror after 9/11, it was because he had no other realistic legal alternative. And when the rest of us make invidious comparisons between Europe and America, we should keep our fundamental differences in mind. There is no European 82nd Airborne, and there is no American Jean-Louis Bruguiere.
Mr. Stephens is a member of The Wall Street Journal's editorial board. His column appears in the Journal Tuesdays.
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Second post of the morning:
NY Times
Editorial Observer
Why Have So Many U.S. Attorneys Been Fired? It Looks a Lot Like Politics
By ADAM COHEN
Published: February 26, 2007
Carol Lam, the former United States attorney for San Diego, is smart and tireless and was very good at her job. Her investigation of Representative Randy Cunningham resulted in a guilty plea for taking more than $2 million in bribes from defense contractors and a sentence of more than eight years. Two weeks ago, she indicted Kyle Dustin Foggo, the former No. 3 official in the C.I.A. The defense-contracting scandal she pursued so vigorously could yet drag in other politicians.
In many Justice Departments, her record would have won her awards, and perhaps a promotion to a top post in Washington. In the Bush Justice Department, it got her fired.
Ms. Lam is one of at least seven United States attorneys fired recently under questionable circumstances. The Justice Department is claiming that Ms. Lam and other well-regarded prosecutors like John McKay of Seattle, David Iglesias of New Mexico, Daniel Bogden of Nevada and Paul Charlton of Arizona — who all received strong job evaluations — performed inadequately.
It is hard to call what’s happening anything other than a political purge. And it’s another shameful example of how in the Bush administration, everything — from rebuilding a hurricane-ravaged city to allocating homeland security dollars to invading Iraq — is sacrificed to partisan politics and winning elections.
U.S. attorneys have enormous power. Their decision to investigate or indict can bankrupt a business or destroy a life. They must be, and long have been, insulated from political pressures. Although appointed by the president, once in office they are almost never asked to leave until a new president is elected. The Congressional Research Service has confirmed how unprecedented these firings are. It found that of 486 U.S. attorneys confirmed since 1981, perhaps no more than three were forced out in similar ways — three in 25 years, compared with seven in recent months.
It is not just the large numbers. The firing of H. E. Cummins III is raising as many questions as Ms. Lam’s. Mr. Cummins, one of the most distinguished lawyers in Arkansas, is respected by Republicans and Democrats alike. But he was forced out to make room for J. Timothy Griffin, a former Karl Rove deputy with thin legal experience who did opposition research for the Republican National Committee. (Mr. Griffin recently bowed to the inevitable and said he will not try for a permanent appointment. But he remains in office indefinitely.)
The Bush administration cleared the way for these personnel changes by slipping a little-noticed provision into the Patriot Act last year that allows the president to appoint interim U.S. attorneys for an indefinite period without Senate confirmation.
Three theories are emerging for why these well-qualified U.S. attorney were fired — all political, and all disturbing.
1. Helping friends. Ms. Lam had already put one powerful Republican congressman in jail and was investigating other powerful politicians. The Justice Department, unpersuasively, claims that it was unhappy about Ms. Lam’s failure to bring more immigration cases. Meanwhile, Ms. Lam has been replaced with an interim prosecutor whose résumé shows almost no criminal law experience, but includes her membership in the Federalist Society, a conservative legal group.
2. Candidate recruitment. U.S. attorney is a position that can make headlines and launch political careers. Congressional Democrats suspect that the Bush administration has been pushing out long-serving U.S. attorneys to replace them with promising Republican lawyers who can then be run for Congress and top state offices.
3. Presidential politics. The Justice Department concedes that Mr. Cummins was doing a good job in Little Rock. An obvious question is whether the administration was more interested in his successor’s skills in opposition political research — let’s not forget that Arkansas has been lucrative fodder for Republicans in the past — in time for the 2008 elections.
The charge of politics certainly feels right. This administration has made partisanship its lodestar. The Washington Post reporter Rajiv Chandrasekaran revealed in his book, “Imperial Life in the Emerald City,” that even applicants to help administer post-invasion Iraq were asked whom they voted for in 2000 and what they thought of Roe v. Wade.
Congress has been admirably aggressive about investigating. Senator Charles Schumer, Democrat of New York, held a tough hearing. And he is now talking about calling on the fired U.S. attorneys to testify and subpoenaing their performance evaluations — both good ideas.
The politicization of government over the last six years has had tragic consequences — in New Orleans, Iraq and elsewhere. But allowing politics to infect U.S. attorney offices takes it to a whole new level. Congress should continue to pursue the case of the fired U.S. attorneys vigorously, both to find out what really happened and to make sure that it does not happen again.
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I. Mr. Weinstein’s Cyst When historians of the future try to identify the moment that neuroscience began to transform the American legal system, they may point to a little-noticed case from the early 1990s. The case involved Herbert Weinstein, a 65-year-old ad executive who was charged with strangling his wife, Barbara, to death and then, in an effort to make the murder look like a suicide, throwing her body out the window of their 12th-floor apartment on East 72nd Street in Manhattan. Before the trial began, Weinstein’s lawyer suggested that his client should not be held responsible for his actions because of a mental defect — namely, an abnormal cyst nestled in his arachnoid membrane, which surrounds the brain like a spider web.
The implications of the claim were considerable. American law holds people criminally responsible unless they act under duress (with a gun pointed at the head, for example) or if they suffer from a serious defect in rationality — like not being able to tell right from wrong. But if you suffer from such a serious defect, the law generally doesn’t care why — whether it’s an unhappy childhood or an arachnoid cyst or both. To suggest that criminals could be excused because their brains made them do it seems to imply that anyone whose brain isn’t functioning properly could be absolved of responsibility. But should judges and juries really be in the business of defining the normal or properly working brain? And since all behavior is caused by our brains, wouldn’t this mean all behavior could potentially be excused?
The prosecution at first tried to argue that evidence of Weinstein’s arachnoid cyst shouldn’t be admitted in court. One of the government’s witnesses, a forensic psychologist named Daniel Martell, testified that brain-scanning technologies were new and untested, and their implications weren’t yet widely accepted by the scientific community. Ultimately, on Oct. 8, 1992, Judge Richard Carruthers issued a Solomonic ruling: Weinstein’s lawyers could tell the jury that brain scans had identified an arachnoid cyst, but they couldn’t tell jurors that arachnoid cysts were associated with violence. Even so, the prosecution team seemed to fear that simply exhibiting images of Weinstein’s brain in court would sway the jury. Eleven days later, on the morning of jury selection, they agreed to let Weinstein plead guilty in exchange for a reduced charge of manslaughter.
After the Weinstein case, Daniel Martell found himself in so much demand to testify as a expert witness that he started a consulting business called Forensic Neuroscience. Hired by defense teams and prosecutors alike, he has testified over the past 15 years in several hundred criminal and civil cases. In those cases, neuroscientific evidence has been admitted to show everything from head trauma to the tendency of violent video games to make children behave aggressively. But Martell told me that it’s in death-penalty litigation that neuroscience evidence is having its most revolutionary effect. “Some sort of organic brain defense has become de rigueur in any sort of capital defense,” he said. Lawyers routinely order scans of convicted defendants’ brains and argue that a neurological impairment prevented them from controlling themselves. The prosecution counters that the evidence shouldn’t be admitted, but under the relaxed standards for mitigating evidence during capital sentencing, it usually is. Indeed, a Florida court has held that the failure to admit neuroscience evidence during capital sentencing is grounds for a reversal. Martell remains skeptical about the worth of the brain scans, but he observes that they’ve “revolutionized the law.”
The extent of that revolution is hotly debated, but the influence of what some call neurolaw is clearly growing. Neuroscientific evidence has persuaded jurors to sentence defendants to life imprisonment rather than to death; courts have also admitted brain-imaging evidence during criminal trials to support claims that defendants like John W. Hinckley Jr., who tried to assassinate President Reagan, are insane. Carter Snead, a law professor at Notre Dame, drafted a staff working paper on the impact of neuroscientific evidence in criminal law for President Bush’s Council on Bioethics. The report concludes that neuroimaging evidence is of mixed reliability but “the large number of cases in which such evidence is presented is striking.” That number will no doubt increase substantially. Proponents of neurolaw say that neuroscientific evidence will have a large impact not only on questions of guilt and punishment but also on the detection of lies and hidden bias, and on the prediction of future criminal behavior. At the same time, skeptics fear that the use of brain-scanning technology as a kind of super mind-reading device will threaten our privacy and mental freedom, leading some to call for the legal system to respond with a new concept of “cognitive liberty.”
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One of the most enthusiastic proponents of neurolaw is Owen Jones, a professor of law and biology at Vanderbilt. Jones (who happens to have been one of my law-school classmates) has joined a group of prominent neuroscientists and law professors who have applied for a large MacArthur Foundation grant; they hope to study a wide range of neurolaw questions, like: Do sexual offenders and violent teenagers show unusual patterns of brain activity? Is it possible to capture brain images of chronic neck pain when someone claims to have suffered whiplash? In the meantime, Jones is turning Vanderbilt into a kind of Los Alamos for neurolaw. The university has just opened a $27 million neuroimaging center and has poached leading neuroscientists from around the world; soon, Jones hopes to enroll students in the nation’s first program in law and neuroscience. “It’s breathlessly exciting,” he says. “This is the new frontier in law and science — we’re peering into the black box to see how the brain is actually working, that hidden place in the dark quiet, where we have our private thoughts and private reactions — and the law will inevitably have to decide how to deal with this new technology.”
II. A Visit to Vanderbilt Owen Jones is a disciplined and quietly intense man, and his enthusiasm for the transformative power of neuroscience is infectious. With René Marois, a neuroscientist in the psychology department, Jones has begun a study of how the human brain reacts when asked to impose various punishments. Informally, they call the experiment Harm and Punishment — and they offered to make me one of their first subjects.
We met in Jones’s pristine office, which is decorated with a human skull and calipers, like those that phrenologists once used to measure the human head; his father is a dentist, and his grandfather was an electrical engineer who collected tools. We walked over to Vanderbilt’s Institute of Imaging Science, which, although still surrounded by scaffolding, was as impressive as Jones had promised. The basement contains one of the few 7-tesla magnetic-resonance-imaging scanners in the world. For Harm and Punishment, Jones and Marois use a less powerful 3 tesla, which is the typical research M.R.I.
We then made our way to the scanner. After removing all metal objects — including a belt and a stray dry-cleaning tag with a staple — I put on earphones and a helmet that was shaped like a birdcage to hold my head in place. The lab assistant turned off the lights and left the room; I lay down on the gurney and, clutching a panic button, was inserted into the magnet. All was dark except for a screen flashing hypothetical crime scenarios, like this one: “John, who lives at home with his father, decides to kill him for the insurance money. After convincing his father to help with some electrical work in the attic, John arranges for him to be electrocuted. His father survives the electrocution, but he is hospitalized for three days with injuries caused by the electrical shock.” I was told to press buttons indicating the appropriate level of punishment, from 0 to 9, as the magnet recorded my brain activity.
After I spent 45 minutes trying not to move an eyebrow while assigning punishments to dozens of sordid imaginary criminals, Marois told me through the intercom to try another experiment: namely, to think of familiar faces and places in sequence, without telling him whether I was starting with faces or places. I thought of my living room, my wife, my parents’ apartment and my twin sons, trying all the while to avoid improper thoughts for fear they would be discovered. Then the experiments were over, and I stumbled out of the magnet.
The next morning, Owen Jones and I reported to René Marois’s laboratory for the results. Marois’s graduate students, who had been up late analyzing my brain, were smiling broadly. Because I had moved so little in the machine, they explained, my brain activity was easy to read. “Your head movement was incredibly low, and you were the harshest punisher we’ve had,” Josh Buckholtz, one of the grad students, said with a happy laugh. “You were a researcher’s dream come true!” Buckholtz tapped the keyboard, and a high-resolution 3-D image of my brain appeared on the screen in vivid colors. Tiny dots flickered back and forth, showing my eyes moving as they read the lurid criminal scenarios. Although I was only the fifth subject to be put in the scanner, Marois emphasized that my punishment ratings were higher than average. In one case, I assigned a 7 where the average punishment was 4. “You were focusing on the intent, and the others focused on the harm,” Buckholtz said reassuringly.
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Marois explained that he and Jones wanted to study the interactions among the emotion-generating regions of the brain, like the amygdala, and the prefrontal regions responsible for reason. “It is also possible that the prefrontal cortex is critical for attributing punishment, making the essential decision about what kind of punishment to assign,” he suggested. Marois stressed that in order to study that possibility, more subjects would have to be put into the magnet. But if the prefrontal cortex does turn out to be critical for selecting among punishments, Jones added, it could be highly relevant for lawyers selecting a jury. For example, he suggested, lawyers might even select jurors for different cases based on their different brain-activity patterns. In a complex insider-trading case, for example, perhaps the defense would “like to have a juror making decisions on maximum deliberation and minimum emotion”; in a government entrapment case, emotional reactions might be more appropriate.
We then turned to the results of the second experiment, in which I had been asked to alternate between thinking of faces and places without disclosing the order. “We think we can guess what you were thinking about, even though you didn’t tell us the order you started with,” Marois said proudly. “We think you started with places and we will prove to you that it wasn’t just luck.” Marois showed me a picture of my parahippocampus, the area of the brain that responds strongly to places and the recognition of scenes. “It’s lighting up like Christmas on all cylinders,” Marois said. “It worked beautifully, even though we haven’t tried this before here.”
He then showed a picture of the fusiform area, which is responsible for facial recognition. It, too, lighted up every time I thought of a face. “This is a potentially very serious legal implication,” Jones broke in, since the technology allows us to tell what people are thinking about even if they deny it. He pointed to a series of practical applications. Because subconscious memories of faces and places may be more reliable than conscious memories, witness lineups could be transformed. A child who claimed to have been victimized by a stranger, moreover, could be shown pictures of the faces of suspects to see which one lighted up the face-recognition area in ways suggesting familiarity.
Jones and Marois talked excitedly about the implications of their experiments for the legal system. If they discovered a significant gap between people’s hard-wired sense of how severely certain crimes should be punished and the actual punishments assigned by law, federal sentencing guidelines might be revised, on the principle that the law shouldn’t diverge too far from deeply shared beliefs. Experiments might help to develop a deeper understanding of the criminal brain, or of the typical brain predisposed to criminal activity.
III. The End of Responsibility? Indeed, as the use of functional M.R.I. results becomes increasingly common in courtrooms, judges and juries may be asked to draw new and sometimes troubling lines between “normal” and “abnormal” brains. Ruben Gur, a professor of psychology at the University of Pennsylvania School of Medicine, specializes in doing just that. Gur began his expert-witness career in the mid-1990s when a colleague asked him to help in the trial of a convicted serial killer in Florida named Bobby Joe Long. Known as the “classified-ad rapist,” because he would respond to classified ads placed by women offering to sell household items, then rape and kill them, Long was sentenced to death after he committed at least nine murders in Tampa. Gur was called as a national expert in positron-emission tomography, or PET scans, in which patients are injected with a solution containing radioactive markers that illuminate their brain activity. After examining Long’s PET scans, Gur testified that a motorcycle accident that had left Long in a coma had also severely damaged his amygdala. It was after emerging from the coma that Long committed his first rape.
“I didn’t have the sense that my testimony had a profound impact,” Gur told me recently — Long is still filing appeals — but he has testified at more than 20 capital cases since then. He wrote a widely circulated affidavit arguing that adolescents are not as capable of controlling their impulses as adults because the development of neurons in the prefrontal cortex isn’t complete until the early 20s. Based on that affidavit, Gur was asked to contribute to the preparation of one of the briefs filed by neuroscientists and others in Roper v. Simmons, the landmark case in which a divided Supreme Court struck down the death penalty for offenders who committed crimes when they were under the age of 18.
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The leading neurolaw brief in the case, filed by the American Medical Association and other groups, argued that because “adolescent brains are not fully developed” in the prefrontal regions, adolescents are less able than adults to control their impulses and should not be held fully accountable “for the immaturity of their neural anatomy.” In his majority decision, Justice Anthony Kennedy declared that “as any parent knows and as the scientific and sociological studies” cited in the briefs “tend to confirm, ‘[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults.’ ” Although Kennedy did not cite the neuroscience evidence specifically, his indirect reference to the scientific studies in the briefs led some supporters and critics to view the decision as the Brown v. Board of Education of neurolaw.
One important question raised by the Roper case was the question of where to draw the line in considering neuroscience evidence as a legal mitigation or excuse. Should courts be in the business of deciding when to mitigate someone’s criminal responsibility because his brain functions improperly, whether because of age, in-born defects or trauma? As we learn more about criminals’ brains, will we have to redefine our most basic ideas of justice?
Two of the most ardent supporters of the claim that neuroscience requires the redefinition of guilt and punishment are Joshua D. Greene, an assistant professor of psychology at Harvard, and Jonathan D. Cohen, a professor of psychology who directs the neuroscience program at Princeton. Greene got Cohen interested in the legal implications of neuroscience, and together they conducted a series of experiments exploring how people’s brains react to moral dilemmas involving life and death. In particular, they wanted to test people’s responses in the f.M.R.I. scanner to variations of the famous trolley problem, which philosophers have been arguing about for decades.
The trolley problem goes something like this: Imagine a train heading toward five people who are going to die if you don’t do anything. If you hit a switch, the train veers onto a side track and kills another person. Most people confronted with this scenario say it’s O.K. to hit the switch. By contrast, imagine that you’re standing on a footbridge that spans the train tracks, and the only way you can save the five people is to push an obese man standing next to you off the footbridge so that his body stops the train. Under these circumstances, most people say it’s not O.K. to kill one person to save five.
“I wondered why people have such clear intuitions,” Greene told me, “and the core idea was to confront people with these two cases in the scanner and see if we got more of an emotional response in one case and reasoned response in the other.” As it turns out, that’s precisely what happened: Greene and Cohen found that the brain region associated with deliberate problem solving and self-control, the dorsolateral prefrontal cortex, was especially active when subjects confronted the first trolley hypothetical, in which most of them made a utilitarian judgment about how to save the greatest number of lives. By contrast, emotional centers in the brain were more active when subjects confronted the second trolley hypothetical, in which they tended to recoil at the idea of personally harming an individual, even under such wrenching circumstances. “This suggests that moral judgment is not a single thing; it’s intuitive emotional responses and then cognitive responses that are duking it out,” Greene said.
“To a neuroscientist, you are your brain; nothing causes your behavior other than the operations of your brain,” Greene says. “If that’s right, it radically changes the way we think about the law. The official line in the law is all that matters is whether you’re rational, but you can have someone who is totally rational but whose strings are being pulled by something beyond his control.” In other words, even someone who has the illusion of making a free and rational choice between soup and salad may be deluding himself, since the choice of salad over soup is ultimately predestined by forces hard-wired in his brain. Greene insists that this insight means that the criminal-justice system should abandon the idea of retribution — the idea that bad people should be punished because they have freely chosen to act immorally — which has been the focus of American criminal law since the 1970s, when rehabilitation went out of fashion. Instead, Greene says, the law should focus on deterring future harms. In some cases, he supposes, this might mean lighter punishments. “If it’s really true that we don’t get any prevention bang from our punishment buck when we punish that person, then it’s not worth punishing that person,” he says. (On the other hand, Carter Snead, the Notre Dame scholar, maintains that capital defendants who are not considered fully blameworthy under current rules could be executed more readily under a system that focused on preventing future harms.)
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Others agree with Greene and Cohen that the legal system should be radically refocused on deterrence rather than on retribution. Since the celebrated M’Naughten case in 1843, involving a paranoid British assassin, English and American courts have recognized an insanity defense only for those who are unable to appreciate the difference between right and wrong. (This is consistent with the idea that only rational people can be held criminally responsible for their actions.) According to some neuroscientists, that rule makes no sense in light of recent brain-imaging studies. “You can have a horrendously damaged brain where someone knows the difference between right and wrong but nonetheless can’t control their behavior,” says Robert Sapolsky, a neurobiologist at Stanford. “At that point, you’re dealing with a broken machine, and concepts like punishment and evil and sin become utterly irrelevant. Does that mean the person should be dumped back on the street? Absolutely not. You have a car with the brakes not working, and it shouldn’t be allowed to be near anyone it can hurt.”
Even as these debates continue, some skeptics contend that both the hopes and fears attached to neurolaw are overblown. “There’s nothing new about the neuroscience ideas of responsibility; it’s just another material, causal explanation of human behavior,” says Stephen J. Morse, professor of law and psychiatry at the University of Pennsylvania. “How is this different than the Chicago school of sociology,” which tried to explain human behavior in terms of environment and social structures? “How is it different from genetic explanations or psychological explanations? The only thing different about neuroscience is that we have prettier pictures and it appears more scientific.”
Morse insists that “brains do not commit crimes; people commit crimes” — a conclusion he suggests has been ignored by advocates who, “infected and inflamed by stunning advances in our understanding of the brain . . . all too often make moral and legal claims that the new neuroscience . . . cannot sustain.” He calls this “brain overclaim syndrome” and cites as an example the neuroscience briefs filed in the Supreme Court case Roper v. Simmons to question the juvenile death penalty. “What did the neuroscience add?” he asks. If adolescent brains caused all adolescent behavior, “we would expect the rates of homicide to be the same for 16- and 17-year-olds everywhere in the world — their brains are alike — but in fact, the homicide rates of Danish and Finnish youths are very different than American youths.” Morse agrees that our brains bring about our behavior — “I’m a thoroughgoing materialist, who believes that all mental and behavioral activity is the causal product of physical events in the brain” — but he disagrees that the law should excuse certain kinds of criminal conduct as a result. “It’s a total non sequitur,” he says. “So what if there’s biological causation? Causation can’t be an excuse for someone who believes that responsibility is possible. Since all behavior is caused, this would mean all behavior has to be excused.” Morse cites the case of Charles Whitman, a man who, in 1966, killed his wife and his mother, then climbed up a tower at the University of Texas and shot and killed 13 more people before being shot by police officers. Whitman was discovered after an autopsy to have a tumor that was putting pressure on his amygdala. “Even if his amygdala made him more angry and volatile, since when are anger and volatility excusing conditions?” Morse asks. “Some people are angry because they had bad mommies and daddies and others because their amygdalas are mucked up. The question is: When should anger be an excusing condition?”
Still, Morse concedes that there are circumstances under which new discoveries from neuroscience could challenge the legal system at its core. “Suppose neuroscience could reveal that reason actually plays no role in determining human behavior,” he suggests tantalizingly. “Suppose I could show you that your intentions and your reasons for your actions are post hoc rationalizations that somehow your brain generates to explain to you what your brain has already done” without your conscious participation. If neuroscience could reveal us to be automatons in this respect, Morse is prepared to agree with Greene and Cohen that criminal law would have to abandon its current ideas about responsibility and seek other ways of protecting society.
Some scientists are already pushing in this direction. In a series of famous experiments in the 1970s and ’80s, Benjamin Libet measured people’s brain activity while telling them to move their fingers whenever they felt like it. Libet detected brain activity suggesting a readiness to move the finger half a second before the actual movement and about 400 milliseconds before people became aware of their conscious intention to move their finger. Libet argued that this leaves 100 milliseconds for the conscious self to veto the brain’s unconscious decision, or to give way to it — suggesting, in the words of the neuroscientist Vilayanur S. Ramachandran, that we have not free will but “free won’t.”
Morse is not convinced that the Libet experiments reveal us to be helpless automatons. But he does think that the study of our decision-making powers could bear some fruit for the law. “I’m interested,” he says, “in people who suffer from drug addictions, psychopaths and people who have intermittent explosive disorder — that’s people who have no general rationality problem other than they just go off.” In other words, Morse wants to identify the neural triggers that make people go postal. “Suppose we could show that the higher deliberative centers in the brain seem to be disabled in these cases,” he says. “If these are people who cannot control episodes of gross irrationality, we’ve learned something that might be relevant to the legal ascription of responsibility.” That doesn’t mean they would be let off the hook, he emphasizes: “You could give people a prison sentence and an opportunity to get fixed.”
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IV. Putting the Unconscious on Trial If debates over criminal responsibility long predate the f.M.R.I., so do debates over the use of lie-detection technology. What’s new is the prospect that lie detectors in the courtroom will become much more accurate, and correspondingly more intrusive. There are, at the moment, two lie-detection technologies that rely on neuroimaging, although the value and accuracy of both are sharply contested. The first, developed by Lawrence Farwell in the 1980s, is known as “brain fingerprinting.” Subjects put on an electrode-filled helmet that measures a brain wave called p300, which, according to Farwell, changes its frequency when people recognize images, pictures, sights and smells. After showing a suspect pictures of familiar places and measuring his p300 activation patterns, government officials could, at least in theory, show a suspect pictures of places he may or may not have seen before — a Qaeda training camp, for example, or a crime scene — and compare the activation patterns. (By detecting not only lies but also honest cases of forgetfulness, the technology could expand our very idea of lie detection.)
The second lie-detection technology uses f.M.R.I. machines to compare the brain activity of liars and truth tellers. It is based on a test called Guilty Knowledge, developed by Daniel Langleben at the University of Pennsylvania in 2001. Langleben gave subjects a playing card before they entered the magnet and told them to answer no to a series of questions, including whether they had the card in question. Langleben and his colleagues found that certain areas of the brain lighted up when people lied.
Two companies, No Lie MRI and Cephos, are now competing to refine f.M.R.I. lie-detection technology so that it can be admitted in court and commercially marketed. I talked to Steven Laken, the president of Cephos, which plans to begin selling its products this year. “We have two to three people who call every single week,” he told me. “They’re in legal proceedings throughout the world, and they’re looking to bolster their credibility.” Laken said the technology could have “tremendous applications” in civil and criminal cases. On the government side, he said, the technology could replace highly inaccurate polygraphs in screening for security clearances, as well as in trying to identify suspected terrorists’ native languages and close associates. “In lab studies, we’ve been in the 80- to 90-percent-accuracy range,” Laken says. This is similar to the accuracy rate for polygraphs, which are not considered sufficiently reliable to be allowed in most legal cases. Laken says he hopes to reach the 90-percent- to 95-percent-accuracy range — which should be high enough to satisfy the Supreme Court’s standards for the admission of scientific evidence. Judy Illes, director of Neuroethics at the Stanford Center for Biomedical Ethics, says, “I would predict that within five years, we will have technology that is sufficiently reliable at getting at the binary question of whether someone is lying that it may be utilized in certain legal settings.”
If and when lie-detection f.M.R.I.’s are admitted in court, they will raise vexing questions of self-incrimination and privacy. Hank Greely, a law professor and head of the Stanford Center for Law and the Biosciences, notes that prosecution and defense witnesses might have their credibility questioned if they refused to take a lie-detection f.M.R.I., as might parties and witnesses in civil cases. Unless courts found the tests to be shocking invasions of privacy, like stomach pumps, witnesses could even be compelled to have their brains scanned. And equally vexing legal questions might arise as neuroimaging technologies move beyond telling whether or not someone is lying and begin to identify the actual content of memories. Michael Gazzaniga, a professor of psychology at the University of California, Santa Barbara, and author of “The Ethical Brain,” notes that within 10 years, neuroscientists may be able to show that there are neurological differences when people testify about their own previous acts and when they testify to something they saw. “If you kill someone, you have a procedural memory of that, whereas if I’m standing and watch you kill somebody, that’s an episodic memory that uses a different part of the brain,” he told me. Even if witnesses don’t have their brains scanned, neuroscience may lead judges and jurors to conclude that certain kinds of memories are more reliable than others because of the area of the brain in which they are processed. Further into the future, and closer to science fiction, lies the possibility of memory downloading. “One could even, just barely, imagine a technology that might be able to ‘read out’ the witness’s memories, intercepted as neuronal firings, and translate it directly into voice, text or the equivalent of a movie,” Hank Greely writes.
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Greely acknowledges that lie-detection and memory-retrieval technologies like this could pose a serious challenge to our freedom of thought, which is now defended largely by the First Amendment protections for freedom of expression. “Freedom of thought has always been buttressed by the reality that you could only tell what someone thought based on their behavior,” he told me. “This technology holds out the possibility of looking through the skull and seeing what’s really happening, seeing the thoughts themselves.” According to Greely, this may challenge the principle that we should be held accountable for what we do, not what we think. “It opens up for the first time the possibility of punishing people for their thoughts rather than their actions,” he says. “One reason thought has been free in the harshest dictatorships is that dictators haven’t been able to detect it.” He adds, “Now they may be able to, putting greater pressure on legal constraints against government interference with freedom of thought.”
In the future, neuroscience could also revolutionize the way jurors are selected. Steven Laken, the president of Cephos, says that jury consultants might seek to put prospective jurors in f.M.R.I.’s. “You could give videotapes of the lawyers and witnesses to people when they’re in the magnet and see what parts of their brains light up,” he says. A situation like this would raise vexing questions about jurors’ prejudices — and what makes for a fair trial. Recent experiments have suggested that people who believe themselves to be free of bias may harbor plenty of it all the same.
The experiments, conducted by Elizabeth Phelps, who teaches psychology at New York University, combine brain scans with a behavioral test known as the Implicit Association Test, or I.A.T., as well as physiological tests of the startle reflex. The I.A.T. flashes pictures of black and white faces at you and asks you to associate various adjectives with the faces. Repeated tests have shown that white subjects take longer to respond when they’re asked to associate black faces with positive adjectives and white faces with negative adjectives than vice versa, and this is said to be an implicit measure of unconscious racism. Phelps and her colleagues added neurological evidence to this insight by scanning the brains and testing the startle reflexes of white undergraduates at Yale before they took the I.A.T. She found that the subjects who showed the most unconscious bias on the I.A.T. also had the highest activation in their amygdalas — a center of threat perception — when unfamiliar black faces were flashed at them in the scanner. By contrast, when subjects were shown pictures of familiar black and white figures — like Denzel Washington, Martin Luther King Jr. and Conan O’Brien — there was no jump in amygdala activity.
The legal implications of the new experiments involving bias and neuroscience are hotly disputed. Mahzarin R. Banaji, a psychology professor at Harvard who helped to pioneer the I.A.T., has argued that there may be a big gap between the concept of intentional bias embedded in law and the reality of unconscious racism revealed by science. When the gap is “substantial,” she and the U.C.L.A. law professor Jerry Kang have argued, “the law should be changed to comport with science” — relaxing, for example, the current focus on intentional discrimination and trying to root out unconscious bias in the workplace with “structural interventions,” which critics say may be tantamount to racial quotas. One legal scholar has cited Phelps’s work to argue for the elimination of peremptory challenges to prospective jurors — if most whites are unconsciously racist, the argument goes, then any decision to strike a black juror must be infected with racism. Much to her displeasure, Phelps’s work has been cited by a journalist to suggest that a white cop who accidentally shot a black teenager on a Brooklyn rooftop in 2004 must have been responding to a hard-wired fear of unfamiliar black faces — a version of the amygdala made me do it.
Phelps herself says it’s “crazy” to link her work to cops who shoot on the job and insists that it is too early to use her research in the courtroom. “Part of my discomfort is that we haven’t linked what we see in the amygdala or any other region of the brain with an activity outside the magnet that we would call racism,” she told me. “We have no evidence whatsoever that activity in the brain is more predictive of things we care about in the courtroom than the behaviors themselves that we correlate with brain function.” In other words, just because you have a biased reaction to a photograph doesn’t mean you’ll act on those biases in the workplace. Phelps is also concerned that jurors might be unduly influenced by attention-grabbing pictures of brain scans. “Frank Keil, a psychologist at Yale, has done research suggesting that when you have a picture of a mechanism, you have a tendency to overestimate how much you understand the mechanism,” she told me. Defense lawyers confirm this phenomenon. “Here was this nice color image we could enlarge, that the medical expert could point to,” Christopher Plourd, a San Diego criminal defense lawyer, told The Los Angeles Times in the early 1990s. “It documented that this guy had a rotten spot in his brain. The jury glommed onto that.”
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Other scholars are even sharper critics of efforts to use scientific experiments about unconscious bias to transform the law. “I regard that as an extraordinary claim that you could screen potential jurors or judges for bias; it’s mind-boggling,” I was told by Philip Tetlock, professor at the Haas School of Business at the University of California at Berkley. Tetlock has argued that split-second associations between images of African-Americans and negative adjectives may reflect “simple awareness of the social reality” that “some groups are more disadvantaged than others.” He has also written that, according to psychologists, “there is virtually no published research showing a systematic link between racist attitudes, overt or subconscious, and real-world discrimination.” (A few studies show, Tetlock acknowledges, that openly biased white people sometimes sit closer to whites than blacks in experiments that simulate job hiring and promotion.) “A light bulb going off in your brain means nothing unless it’s correlated with a particular output, and the brain-scan stuff, heaven help us, we have barely linked that with anything,” agrees Tetlock’s co-author, Amy Wax of the University of Pennsylvania Law School. “The claim that homeless people light up your amygdala more and your frontal cortex less and we can infer that you will systematically dehumanize homeless people — that’s piffle.”
V. Are You Responsible for What You Might Do? The attempt to link unconscious bias to actual acts of discrimination may be dubious. But are there other ways to look inside the brain and make predictions about an individual’s future behavior? And if so, should those discoveries be employed to make us safer? Efforts to use science to predict criminal behavior have a disreputable history. In the 19th century, the Italian criminologist Cesare Lombroso championed a theory of “biological criminality,” which held that criminals could be identified by physical characteristics, like large jaws or bushy eyebrows. Nevertheless, neuroscientists are trying to find the factors in the brain associated with violence. PET scans of convicted murderers were first studied in the late 1980s by Adrian Raine, a professor of psychology at the University of Southern California; he found that their prefrontal cortexes, areas associated with inhibition, had reduced glucose metabolism and suggested that this might be responsible for their violent behavior. In a later study, Raine found that subjects who received a diagnosis of antisocial personality disorder, which correlates with violent behavior, had 11 percent less gray matter in their prefrontal cortexes than control groups of healthy subjects and substance abusers. His current research uses f.M.R.I.’s to study moral decision-making in psychopaths.
Neuroscience, it seems, points two ways: it can absolve individuals of responsibility for acts they’ve committed, but it can also place individuals in jeopardy for acts they haven’t committed — but might someday. “This opens up a Pandora’s box in civilized society that I’m willing to fight against,” says Helen S. Mayberg, a professor of psychiatry, behavioral sciences and neurology at Emory University School of Medicine, who has testified against the admission of neuroscience evidence in criminal trials. “If you believe at the time of trial that the picture informs us about what they were like at the time of the crime, then the picture moves forward. You need to be prepared for: ‘This spot is a sign of future dangerousness,’ when someone is up for parole. They have a scan, the spot is there, so they don’t get out. It’s carved in your brain.”
Other scholars see little wrong with using brain scans to predict violent tendencies and sexual predilections — as long as the scans are used within limits. “It’s not necessarily the case that if predictions work, you would say take that guy off the street and throw away the key,” says Hank Greely, the Stanford law professor. “You could require counseling, surveillance, G.P.S. transmitters or warning the neighbors. None of these are necessarily benign, but they beat the heck out of preventative detention.” Greely has little doubt that predictive technologies will be enlisted in the war on terror — perhaps in radical ways. “Even with today’s knowledge, I think we can tell whether someone has a strong emotional reaction to seeing things, and I can certainly imagine a friend-versus-foe scanner. If you put everyone who reacts badly to an American flag in a concentration camp or Guantánamo, that would be bad, but in an occupation situation, to mark someone down for further surveillance, that might be appropriate.”
Paul Root Wolpe, who teaches social psychiatry and psychiatric ethics at the University of Pennsylvania School of Medicine, says he anticipates that neuroscience predictions will move beyond the courtroom and will be used to make predictions about citizens in all walks of life.
“Will we use brain imaging to track kids in school because we’ve discovered that certain brain function or morphology suggests aptitude?” he asks. “I work for NASA, and imagine how helpful it might be for NASA if it could scan your brain to discover whether you have a good enough spatial sense to be a pilot.” Wolpe says that brain imaging might eventually be used to decide if someone is a worthy foster or adoptive parent — a history of major depression and cocaine abuse can leave telltale signs on the brain, for example, and future studies might find parts of the brain that correspond to nurturing and caring.
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(Page 9 of 9)
The idea of holding people accountable for their predispositions rather than their actions poses a challenge to one of the central principles of Anglo-American jurisprudence: namely, that people are responsible for their behavior, not their proclivities — for what they do, not what they think. “We’re going to have to make a decision about the skull as a privacy domain,” Wolpe says. Indeed, Wolpe serves on the board of an organization called the Center for Cognitive Liberty and Ethics, a group of neuroscientists, legal scholars and privacy advocates “dedicated to protecting and advancing freedom of thought in the modern world of accelerating neurotechnologies.”
There may be similar “cognitive liberty” battles over efforts to repair or enhance broken brains. A remarkable technique called transcranial magnetic stimulation, for example, has been used to stimulate or inhibit specific regions of the brain. It can temporarily alter how we think and feel. Using T.M.S., Ernst Fehr and Daria Knoch of the University of Zurich temporarily disrupted each side of the dorsolateral prefrontal cortex in test subjects. They asked their subjects to participate in an experiment that economists call the ultimatum game. One person is given $20 and told to divide it with a partner. If the partner rejects the proposed amount as too low, neither person gets any money. Subjects whose prefrontal cortexes were functioning properly tended to reject offers of $4 or less: they would rather get no money than accept an offer that struck them as insulting and unfair. But subjects whose right prefrontal cortexes were suppressed by T.M.S. tended to accept the $4 offer. Although the offer still struck them as insulting, they were able to suppress their indignation and to pursue the selfishly rational conclusion that a low offer is better than nothing.
Some neuroscientists believe that T.M.S. may be used in the future to enforce a vision of therapeutic justice, based on the idea that defective brains can be cured. “Maybe somewhere down the line, a badly damaged brain would be viewed as something that can heal, like a broken leg that needs to be repaired,” the neurobiologist Robert Sapolsky says, although he acknowledges that defining what counts as a normal brain is politically and scientifically fraught. Indeed, efforts to identify normal and abnormal brains have been responsible for some of the darkest movements in the history of science and technology, from phrenology to eugenics. “How far are we willing to go to use neurotechnology to change people’s brains we consider disordered?” Wolpe asks. “We might find a part of the brain that seems to be malfunctioning, like a discrete part of the brain operative in violent or sexually predatory behavior, and then turn off or inhibit that behavior using transcranial magnetic stimulation.” Even behaviors in the normal range might be fine-tuned by T.M.S.: jurors, for example, could be made more emotional or more deliberative with magnetic interventions. Mark George, an adviser to the Cephos company and also director of the Medical University of South Carolina Center for Advanced Imaging Research, has submitted a patent application for a T.M.S. procedure that supposedly suppresses the area of the brain involved in lying and makes a person less capable of not telling the truth.
As the new technologies proliferate, even the neurolaw experts themselves have only begun to think about the questions that lie ahead. Can the police get a search warrant for someone’s brain? Should the Fourth Amendment protect our minds in the same way that it protects our houses? Can courts order tests of suspects’ memories to determine whether they are gang members or police informers, or would this violate the Fifth Amendment’s ban on compulsory self-incrimination? Would punishing people for their thoughts rather than for their actions violate the Eighth Amendment’s ban on cruel and unusual punishment? However astonishing our machines may become, they cannot tell us how to answer these perplexing questions. We must instead look to our own powers of reasoning and intuition, relatively primitive as they may be. As Stephen Morse puts it, neuroscience itself can never identify the mysterious point at which people should be excused from responsibility for their actions because they are not able, in some sense, to control themselves. That question, he suggests, is “moral and ultimately legal,” and it must be answered not in laboratories but in courtrooms and legislatures. In other words, we must answer it ourselves.
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In Defense of the Constitution
News & Analysis
010/07 March 19, 2007
Americans: We Were All on US Airways Flight 300
On 13 March, the Council on American-Islamic Relations (CAIR) announced that six imams who had disrupted a US Airways flight by engaging in suspicious behavior, have filed a lawsuit against US Airways and the Minnesota Metropolitan Airport Commission (MAC) claiming a laundry-list of civil rights violations:
http://www.cair.com/default.asp?Page=articleView&id=2615&theType=NR
In addition to suing the airline and the MAC, the "Magnificent Six" are going after unknown gate agents, other unknown employees of US Airways, and "John Does"; currently unidentified passengers who, according to the complaint, had the effrontery to dare to report the suspicious activities of the Magnificent Six to authorities:
http://www.cair.com/pdf/usairwayscomplaint.pdf
The following was written by Katherine Kersten on 14 March and appeared in the StarTribune.com:
"The imams' attempt to bully ordinary passengers marks an alarming new front in the war on airline security. Average folks, "John Does" like you and me, initially observed and reported the imams' suspicious behavior on Nov. 20. Such people are our "first responders" against terrorism. But the imams' suit may frighten such individuals into silence, as they seek to avoid the nightmare of being labeled bigots and named as defendants."
"Ironically, on the day the imams filed their suit, a troubling internal memo came to light at the Minneapolis-St. Paul International Airport. The memo revealed that our airport is at particular risk of terrorist attack because of its proximity to the Mall of America, its employment of relatively few security officers and other factors. The memo advised heightened vigilance to counter "this very real and deliberate threat."
http://www.startribune.com/191/story/1055656.html
All non-Muslim Americans have been officially put on notice by CAIR that they report the suspicious activities of Muslims at risk of legal action.
However, what about the role of the federal and state governments, which routinely ask citizens to report "suspicious activity" even if they are not quite sure it is dangerous on the presumption that "it's better to be safe than sorry? Who do we listen to, an Islamist terrorist supporting "civil rights" group, or our governments?
Let us ask ourselves, what is the ultimate goal of this lawsuit? Could it possibly be to make citizens second-guess themselves when they witness a possible terrorist act or precursor probe and to err on the side of not reporting under threat of lawsuit? Why does CAIR apparently support the ending of this "first line of defense"?
One thing we are certain of: it has absolutely nothing to do with civil rights, Muslim or otherwise.
As this case moves to trial, we hope all Americans will stand in solidarity with the passengers, US Airways, and its employees who were terrorized that day.
When the trial opens, we should all remember that we were passengers on US Airways Flight 300 that day.because if the Magnificent Six win their case, what person in their right mind will want to travel by air within the United States, knowing that security personnel are under orders to ignore Middle Eastern passengers, no matter how suspicious their activities?
Andrew Whitehead
Director
Anti-CAIR (ACAIR)
ajwhitehead@anti-cair-net.org
www.anti-cair-net.org
====================
Opinion Journal WSJ
A Hitchhiker's Guide to Village Idiocy
In the opening chapter of Douglas Adams's "The Hitchhiker's Guide to the Galaxy," the protagonist, Englishman Arthur Dent, awakes to find bulldozers poised to knock down his home to make room for a highway bypass. An added irony, the Earth is about to be demolished by the Vogons to clear a path for a hyperspace bypass. In both instances, the agents of bureaucratic destruction defend their actions by claiming they had given ample notice to any who might want to lodge a challenge.
New Yorker Bill Brody must know how the fictional Mr. Dent felt. In the late 1990s, he purchased four buildings in the New York suburb of Port Chester. The village issued him permits to renovate the buildings, which he did, and filled them with business tenants. What the village didn't tell Mr. Brody at the time it issued the renovation permits was that it intended to take his property under the law of eminent domain, not for a highway or school, but to give to another private entity, G&S Investors, to build a convenience store and parking lot as part of a larger development plan that included a Costco and a multiplex.
Under state law at the time, government agencies were not required to notify property owners directly of their plans to seize their land. All that was required was for a legal classified ad to be published in a newspaper, which didn't even have to inform the potential victims that they would be waiving their rights to challenge the decision in court if they didn't file a lawsuit within 30 days of the ad's publication. (The state legislature has since amended the law, though New Yorkers still bear a heavy onus in defending their rights.)
Represented by the Institute of Justice, which has a history of defending property owners in eminent-domain cases, Mr. Brody struck a blow for property rights when the Second U.S. Circuit Court of Appeals ruled in late 2005 that the Village of Port Chester had violated his 14th Amendment right to due process by condemning his property for private development without notifying him of his one opportunity to challenge the plan. That decision sent the case back to the district court where Mr. Brody can try to receive damages for the confiscated property that was demolished in 2004.
This week his case will be heard again in New York. Let's hope justice prevails for this real-life Arthur Dent.
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Three Cheers for Lawyers
Don't think a good defense attorney matters? Think again.
BY RANDY E. BARNETT
Tuesday, April 17, 2007 12:01 a.m. EDT
WSJ
Years ago, I appeared on "The Ricki Lake Show" in an episode about persons who had been freed on appeal after being wrongfully convicted of crimes. As a former criminal prosecutor with the Cook County State's Attorney's Office in Chicago, I was there to represent the "prosecution viewpoint" (whatever that might be), along with the leader of New York's Guardian Angels representing the "victims' viewpoint."
The other guests consisted of innocent persons whose convictions had been reversed, their appellate lawyers, their parents and a reporter who had helped vindicate a father wrongfully convicted of murdering his young daughter. As I approached the set, I wondered what I could possibly say that would ward off the hoots of the audience, especially given that I was just as appalled by wrongful convictions and prosecutorial abuses.
The point I decided to make was simple: For better or worse, we have an adversary legal system that relies for its proper operation on having competent lawyers on both sides. In every case I knew about where an innocent person had been convicted, there had been an incompetent defense lawyer at the pretrial and trial stages.
The reaction of the others on the stage with me was stunning. The former defendants all began nodding their heads while their lawyers, who represented them on appeal but not at trial, sat sullenly beside them. Afterwards, some parents even came up to shake my hand.
The crucial importance of defense lawyers was illustrated in reverse by the Duke rape prosecution, mercifully ended last week by North Carolina Attorney General Roy Cooper's highly unusual affirmation of the defendants' complete innocence. Others are rightly focusing on the "perfect storm," generated by a local prosecutor up for election peddling to his constituents a racially-charged narrative that so neatly fit the ideological template of those who dominate academia and the media. But perhaps we should stop for a moment to consider what saved these young men: defense attorneys, blogs and competing governments.
Our criminal justice system does not rely solely on the fairness of the police and prosecutors to get things right. In every criminal case, there is a professional whose only obligation is to scrutinize what the police and prosecutor have done. This "professional" is a lawyer. The next time you hear a lawyer joke, maybe you'll think of the lawyers who represented these three boys and it won't seem so funny. You probably can't picture their faces and don't know their names. (They include Joe Cheshire, Jim Cooney, Michael Cornacchia, Bill Cotter, Wade Smith and the late Kirk Osborn.) That's because they put their zealous representation of their clients ahead of their own egos and fame. Without their lawyering skills, we would not today be speaking so confidently of their clients' innocence.
These lawyers held the prosecutor's feet to the fire. Their skillful questioning at pre-trial hearings revealed the prosecutor's misconduct that eventually forced him to give up control of the case and now threatens his law license. They uncovered compelling exculpatory evidence and made it available to the press; they let their clients and their families air their story in the national media.
There is no rule book for what prosecutors call "heater" cases like this one. Navigating the law, politics and publicity in such case is an art not a science. These fine lawyers displayed all the skills and tenacity that made me want to be a criminal trial lawyer after watching the television series, "The Defenders," when I was 10 years old.
Do you suppose that lawyers like these gained their skills only representing the innocent? Criminal lawyers are constantly asked how they can live with themselves defending those guilty of serious crimes. The full and complete answer ought to be that, because we can never be sure who is guilty and who is innocent until the evidence is scrutinized, the only way to protect the innocent is by effectively defending everyone.
As a prosecutor working "felony review," when I was in a Chicago police station at 3 a.m. deciding whether to approve charges, I had to evaluate the evidence as if I were a defense attorney. Where is the murder weapon? Where are the proceeds of the robbery? How credible are the witnesses? How was the identification of the accused conducted?
In this way, the mere prospect of a competent defense attorney scrutinizing the evidence in the future provides a powerful deterrent to pursuing weak cases even before anyone is charged. Thanks to defense lawyers defending the innocent and guilty alike, prosecutors generally win their cases because they avoid weak cases they may lose. (After the charging stage, a prosecutor's ability to avoid losing at trial by plea bargaining weak cases is a serious, but separate and complex issue.)
Paradoxically, the system's overall accuracy makes defending the truly innocent all the harder. While knowing that mistakes do happen, the accuracy of the system leads everyone, including defense lawyers, to assume that anyone who is charged is probably guilty. After all, they usually are. Notwithstanding the legal "presumption of innocence," in a system that generally gets it right, there is a pragmatic presumption of guilt.
Consequently, effectively defending the innocent usually requires the ability to prove your client's innocence. And that's not easy. Further, because representing the guilty consists mainly of negotiating pleas or knocking holes in the prosecutor's case, defense lawyers do not always develop the skills needed to effectively defend the truly innocent or, as important, know when to deploy them. Defense lawyers become as skeptical about their clients' claims of innocence as everyone else, if not more so. All this contributes to inadequate defense lawyering, which thankfully did not occur here.
Good lawyering alone, however, was not enough to free the Duke players. While the "mainstream" press largely swallowed District Attorney Mike Nifong's narrative of racial oppression, the blogs--especially history professor Robert "K.C." Johnson's blog Durham-in-Wonderland (durhamwonderland.blogspot.com)--provided the means by which the public could learn about the fruits of the defense's efforts. (Mr. Johnson's own difficulty in 2002 obtaining tenure at Brooklyn College over ideologically-motivated opposition was chronicled on this page by Dorothy Rabinowitz, who also, true-to-form, came to the defense of the Duke Lacrosse players.)
Finally, without the competing governing powers of the North Carolina state bar, the Attorney General's office, and potentially the U.S. Justice Department, there would simply have been no one in authority to rein in this prosecutor. It is worth noting, to those who champion political accountability as the highest form of legitimacy, that District Attorney Nifong was elected by, and presumably "accountable" to, his constituents. Nevertheless, his power needed to be checked by competing government agencies and a free press.
Rather than praising the defense lawyers, some of the same folks who whooped in support of Mr. Nifong's efforts are now bemoaning that it was the supposed wealth of these students' parents that enabled them to mount so effective a defense. Never mind that draining all their savings and putting them in debt is an additional injustice resulting from this wrongful prosecution. Of course, as my grandfather used to say, "rich or poor, it's nice to have money," but this case shows that wealth is no defense to public ruin. Sometimes it even invites it.
Let us not be distracted all over again. The difficult problem of innocent defendants typically arises in run-of-the mill cases where prosecutors acting in good faith have no reason to doubt their guilt. It results in part from the pragmatic presumption of guilt, which leads to inadequate defense lawyering, an indifferent press and an oblivious public. There are no easy solutions to this. But refraining from ridiculing lawyers in general, and criminal defense lawyers in particular, would be a nice start, and one that lies within the power of everyone reading these words.
Mr. Barnett is a professor at the Georgetown University Law Center and author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2004).
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I am pleasantly surprised to see that the State of NC is going after this abusive POS. :-D
===========================
Ethics Hearing for Duke Prosecutor
By DUFF WILSON
Published: June 13, 2007
RALEIGH, N.C., June 12 — Two months after the North Carolina attorney general dismissed sexual assault charges against three former Duke University lacrosse players, the prosecutor who brought the case found himself in a crowded courtroom Tuesday, facing charges that could lead to his own disbarment.
Ethics Complaint (N.C. State Bar v. Nifong)
Dismissal of Charges (N.C. v. Finnerty, et al.)Michael B. Nifong, the Durham district attorney, was portrayed by Katherine Jean, a state attorney prosecuting the ethics case, as a politically motivated, overzealous prosecutor who made false statements to the public, news media, defense lawyers and the court in bringing a case with virtually no credible evidence.
“The harm done to these three young men and their families and the justice system of North Carolina is devastating,” Ms. Jean said.
Mr. Nifong’s lawyer, David B. Freedman, responded that the ethics case was not about the weaknesses of the rape case, but primarily focused on whether Mr. Nifong had asked a laboratory director to hide DNA evidence. Mr. Freedman acknowledged in opening statements that some of Mr. Nifong’s public statements “clearly were outlandish” — for instance, he called the Duke lacrosse team “a bunch of hooligans” — but denied he had said anything knowingly false or politically motivated.
Mr. Nifong, 58, a 29-year career prosecutor who was running for election when the case arose in March 2006, is expected to take the stand this week. He sat expressionless during the opening remarks, often holding his chin and cheek by thumb and forefinger. His wife, teenage son, brother and sister sat behind him.
Two of the three former students’ mothers watched opening arguments, with a group of defense lawyers and other supporters whose insistence of innocence had been upheld in April by the state attorney general, Roy A. Cooper, who called Mr. Nifong a “rogue prosecutor.”
The ethics charges were filed by the North Carolina State Bar, a state agency, asserting that Mr. Nifong hid and lied about DNA evidence and that his pretrial comments inflamed the community and prejudiced the defendants.
While the ethics charges are limited to certain areas, the witness list shows it will be putting the whole case on trial, at least to try to show Mr. Nifong knew some of his public comments were false. For instance, he repeatedly said he was certain a rape had occurred.
Benjamin W. Himan, the Durham detective who was lead investigator on the case, said in testimony for the ethics prosecutors on Tuesday that Mr. Nifong had acknowledged to him that the case was weak and relied on the word of a woman hired to strip at a lacrosse team party.
Mr. Himan said he had responded with disbelief when he learned that after a month of inconclusive investigation, Mr. Nifong planned to indict two students. “With what?” Mr. Himan said he responded. At that point, he said, the police did not even know whether one suspect had been at the lacrosse team party. (It turned out he was there but left before any rape could have possibly happened.)
Mr. Himan also said he was “shocked” and “upset” that an investigator for the district attorney later interviewed the accuser by himself, not inviting him as the police investigator. When he read the results of that interview, Mr. Himan said, “It didn’t make any sense to what she had previously told us.”
Joseph B. Cheshire, a defense lawyer involved with the case, said in an interview later that Mr. Himan’s testimony was “chilling” and showed the potentially unchecked power of the state to destroy peoples’ lives even if the evidence did not exist.
Mr. Freedman, one of two lawyers for Mr. Nifong, said after the hearing that he looked forward to cross-examining Mr. Himan on Wednesday and presenting his side of the case — including testimony from Mr. Nifong — later in the week.
Mr. Nifong declined comment.
A decision on the ethics charges may come by Friday or Saturday and could result in penalties as severe as disbarment.
In coming weeks, Mr. Nifong is also facing two separate reviews by Superior Court judges, one on whether to remove him as district attorney, the other on whether he lied in court describing DNA evidence.
The case was overlaid with charges of racism and class privilege because the stripper was black and poor, inflamed the community and much of the nation.
Victoria Peterson, a black activist from Durham, was ejected from the courtroom and courthouse Tuesday after she accosted one mother during the lunch break and said people still thought her son did something wrong and should have stood trial.
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Certainly the NYTimes is a suspect source, especially with long-time nemesis Robert Bork, but this certainly sounds pretty bad for RB.
=======================
Bork v. Bork
Published: June 14, 2007
NY Times editorial
There are many versions of the cliché that “a conservative is a liberal who has been mugged,” and Robert Bork has just given rise to another. A tort plaintiff, it turns out, is a critic of tort lawsuits who has slipped and fallen at the Yale Club.
Mr. Bork, of course, is the former federal appeals court judge who was nominated to the Supreme Court in 1987 but not confirmed by the Senate. He has long been famous for his lack of sympathy for people who go to court with claims of race or sex discrimination, or other injustices. He has gotten particularly exercised about accident victims driving up the cost of business by filing lawsuits. In an op-ed article, he once complained that “juries dispense lottery-like windfalls,” and compared the civil justice system to “Barbary pirates.”
That was before Mr. Bork spoke at the Yale Club last year, and fell on his way to the dais, injuring his leg and bumping his head. Mr. Bork is not merely suing the club for failing to provide a set of stairs and a handrail between the floor and the dais. He has filed a suit that is so aggressive about the law that, if he had not filed it himself, we suspect he might regard it as, well, piratical.
Mr. Bork puts the actual damages for his apparently non-life-threatening injuries (after his fall, he was reportedly able to go on and deliver his speech) at “in excess of $1,000,000.” He is also claiming punitive damages. And he is demanding that the Yale Club pay his attorney’s fees.
We can imagine what Mr. Bork the legal scholar would ask if he had a chance to question Mr. Bork the plaintiff. If it was “reasonably foreseeable” that without stairs and a handrail, “a guest such as Mr. Bork” would be injured, why did Mr. Bork try to climb up to the dais? Where does personal responsibility enter in? And wouldn’t $1 million-plus punitive damages amount to a “lottery-like windfall”?
Since we believe in the tort system, when properly used, all we would ask is whether Mr. Bork’s unfortunate experience at the Yale Club has led him to re-evaluate any of the harsh things he has said in the past about injured people, much like himself, who simply wanted their day in court.
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WSJ
Kelo's Consequences
June 23, 2007; Page A10
Today marks the second anniversary of Kelo v. New London, the Supreme Court ruling that gave governments the authority to seize property on behalf of private developers. Since the 5-4 ruling, many state governments have taken some sort of action to limit these "takings." But in areas that legislators have failed to protect -- which usually turn out to be where low-income minorities reside -- citizens are still exposed to eminent domain abuse.
A recent study by the Institute for Justice compared the demographic characteristics of 184 areas targeted by eminent domain to the surrounding communities. The report shows that eminent domain disproportionately affects poor, ethnic minorities with lower levels of education. Minorities comprised 58% of the population in areas targeted by eminent domain, compared to 45% in the surrounding communities. The median income of residents targeted by eminent domain is less than $19,000 per year, compared to more than $23,000 elsewhere. And 25% live at or below the poverty line, versus only 16% elsewhere.
New Jersey resident Jim Keelen doesn't need statistics to define eminent-domain abuse. His home and business, located one block away from the Atlantic Ocean, have been slated for seizure by local government officials. His business, J&M Keelen Transportation Co., runs special-education transportation for public schools in two local counties.
If the government is successful in seizing his property, Mr. Keelen and his 85 employees -- most of them low-income minorities -- will be forced to vacate their office, a restored historical building, so that private developers can tear it down and put up condominiums in its place. His home, located next door, would be torn down as well.
New Jersey is one of 41 states that have enacted some kind of eminent domain reform. Florida and a couple of other states have done the most to limit eminent domain for private development, but others, such as New Jersey, still allow a loophole based on the definition of "blight." In effect, these laws form a patchwork of property rights that can leave many Americans vulnerable to politicians and local officials allied with rich private developers. (See Carla Main's feature.)
Congress is full of proposals to enact federal protections against eminent domain abuse, but so far no measure has gained political traction. Public support for legislative reform remains strong, however, with an overwhelming majority of Americans favoring some kind of limits on government takings. Opposition comes from city and state governments.
If the consequences of Kelo seem surprising, they were anticipated. In her powerful dissent in the case, Justice Sandra Day O'Connor wrote that "fallout from this decision will not be random." She predicted that "the government now has license to transfer property from those with fewer resources to those with more." Two years later, her predictions are coming true, and short of a Supreme Court reversal, more legislative protection for property rights is needed.
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WSJ
The 'Blight' Excuse
By CARLA T. MAIN
June 23, 2007; Page A11
In Brandon, Ore. there lives a one-armed man named Scott Cook who owns income-producing timberland. The state revoked his license to drive a truck on account of his having only one arm. Then the government decided it wasn't quite through with him: Now his land is being taken by the town by eminent domain, so his neighbor's golf resort can be expanded. The town likes the resort because it supplies jobs. Mr. Cook feels certain he will never get what his land is worth. He is outraged that his town would take land from one man to give to another.
This is called an "economic development" taking, and two years ago -- June 23, 2005 -- the nation was up in arms over this sort of thing. On that day the Supreme Court decided Kelo v. New London, and said that it is constitutional for the government to take your property and give it to someone else if doing so will rake in greater taxes for your town.
Americans were instantly united in bipartisan fury. The U.S. Congress swiftly passed a resolution condemning Kelo, and the House and Senate introduced a slew of bills, to curb what so many perceived as the power of eminent domain run amok. More than a hundred bills were introduced in state legislatures to accomplish the same end, and two states passed moratoriums on economic development takings. Pundits spilled ink declaring that the Founding Fathers were spinning in their graves. Spittle flew as politicians grabbed the nearest mike, rushing to condemn Kelo as the unquestioned death knell of American property rights.
But how is it we still have someone like the soon-to-be-timberless Mr. Cook? Well, a year went by and the moratoriums were lifted. Congress never did pass any of the bills. Reform was left to the states. Some states, such as Oregon (hence Mr. Cook's bad luck), California, New York and New Jersey passed no meaningful reforms. The latter three are among the most active in these kinds of takings.
Some 28 states have passed substantive eminent domain reform since Kelo. Many enacted laws that prohibited private-to-private transfers for purposes of economic development. Sounds grand, right? But there's a loophole: blight.
Armed with a blight exception, private property in nearly all of the loophole states may still be condemned and ultimately used for economic development. Put another way, once a finding of blight is made, it's anchors away to build whatever the city or a private developer fancies. This leaves property owners vulnerable to unholy alliances between municipalities and developers, with condemnation processes that can lack transparency and due process.
In 1954, Supreme Court Justice William O. Douglas unleashed municipalities with the ruling in Berman v. Parker: The liberal court at its apex unanimously agreed with the notion that the elimination of blight is a "public use" under the takings clause of the Constitution. But what is blight? A half-century of experience has demonstrated only that it is in the eye of the beholder, or perhaps more to the point, in the eye of the power holder.
Blight standards are notoriously subjective; it just isn't that hard to find when one goes looking for it. And Congress conveniently passed statutes that rewarded municipalities with federal dough for slum clearance. Bingo! Cities found ever more blight to remove, often and not coincidentally in neighborhoods inhabited by blacks and Latinos.
Now, even in the backlash against Kelo, eliminating blight as a ground for eminent domain has proven to be close to impossible. The importance of this problem must not be underestimated if we are to understand why takings for economic development have been so hard to stop. Even when common sense would dictate that a project is economic in purpose, it can still be pursued under an urban renewal plan, i.e., to eliminate "blight." In our post-Kelo world, the vocabulary of economic development takings may have changed, but in many states the substance will not, especially as towns learn to teach to the test.
Only Utah and Florida passed statutes that eliminated the blight loophole -- stating plainly, no economic development takings, ever. The relief in Utah was short-lived. On March 20, 2007, Utah reversed course. Gov. Jon Huntsman signed a bill that restores blight to the table and allows the taking of private property for private development so long as 80% of one's neighbors concur -- a democratic scenario one homeowner called "mob rule."
Florida's law was passed under the white-hot intensity of the Riviera Beach controversy, a massive project that gained national media attention right after Kelo. This development was the brainchild of former Mayor Michael Brown, who wanted to "save" his mostly black city by ejecting some 1,000 homeowners from their modest seaside bungalows that sit on valuable land not far from Palm Beach. Then a great condo and yacht marina complex could be built on this formerly "blighted" land.
The post-Kelo media wave, with support from then Republican Gov. Jeb Bush, helped push Florida's reform bill through and oust the Riviera Beach council, thus killing the project. It remains to be seen how long condo and yacht club developers, big box retailers and the lawmakers they lobby will wait in the wings before obtaining changes in Florida's law.
Fellow legislators wonder too. Ohio conducted a year-long, post-Kelo dog-and-pony show of hearings by an eminent domain task force. It issued a lengthy report -- but the legislature has passed no laws. One member of the task force, unable to envision a world without eminent domain bulldozers, commented to me about Florida's law: "I don't know how they plan to renovate their barrios down there."
At the other end of the spectrum from Utah and Florida there is New Jersey, which has seemingly never met an eminent domain project it didn't like. Events in the Garden State are an object lesson in how post-Kelo politics can devolve. New Jersey Public Advocate Ronald Chen, appointed by Gov. John Corzine, has championed the cause of basic reforms such as giving homeowners notice before condemning their property, improving compensation, and putting the burden on powerful developers to justify a taking by showing that the property is blighted.
As a result, Mr. Chen has found himself mired in the down and dirty muck one finds at the intersection of real estate and money in New Jersey politics. State senators have publicly excoriated him in a legislative hearing for something as ordinary as daring to file amicus briefs in eminent domain cases.
Meanwhile, change has come at an excruciatingly slow pace. Reform bills have been introduced, but none has passed. Working class octogenarians in Long Branch continue their fight to keep their small oceanfront homes -- now valuable -- from the grasp of condo builders; trailer park residents in Lodi have to litigate to hold on in a town that wants to upgrade its residents. In Paulsboro, the taking of empty warehouses and vacant land was challenged; the New Jersey Supreme Court held it does not pass muster to say a property is blighted simply because it is "not fully productive."
The decision was hailed, though it did not invalidate the redevelopment law that spawns such takings. Still, it's a faint light in a very dark tunnel, and similar to a decision by Ohio's Supreme Court, Gamble v. Norwood, in which a working class neighborhood was slated for urban renewal, not because it was deteriorated, but because it was "deteriorating." The court struck the term down as unconstitutionally vague.
In the summer of 2005, even as impassioned speeches to protect private property rights were made to the media on state house steps around the country, resistance was brought to bear inside by interest groups. The result is a national landscape that continues to include barely fettered economic development takings under the blight umbrella.
With each Kelo anniversary, the politics will become more partisan as we forget our initial outrage. While the reforms can improve due process, such as those Mr. Chen recommends, many have aimed at narrowing -- but not eliminating -- blight exceptions. We need to take care. Developers will always look for eminent domain bargains, and towns for ways to raise revenue or rid themselves of undesirable populations. It is not hard to imagine a time when they will set their sights on the surest bets -- the poor and minorities -- resetting eminent domain on its most pernicious historical path.
Ms. Main is the author of the forthcoming "Bulldozed: 'Kelo,' Eminent Domain and the American Lust for Land" (Encounter Books).
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This Is Not Your Land Anymore
An outrageous story of eminent-domain abuse.
BY JONATHAN V. LAST
Tuesday, December 18, 2007 12:01 a.m. EST
The legal phrase "eminent domain" has become all too familiar to nonlawyers in recent years as the U.S. Supreme Court has gradually expanded the power of municipalities to condemn private property and seize it for "public" use--even if they just end up handing property over to another private party. The court's now infamous Kelo decision (2005) no doubt pleased the city fathers of New London, Conn., who had taken possession of some residential neighborhoods for the sake of private developers. But it outraged nearly everyone else, not least Susette Kelo, the plaintiff whose home was coveted.
Outrage, appropriately, is the sustained effect of Carla Main's "Bulldozed," the case study of another instance of eminent-domain abuse, this time in the working-class town of Freeport, Texas (pop. 13,500), on the Gulf coast. Six years ago, after decades of decline, Freeport decided to revitalize itself by building a private marina on the Old Brazos River, which runs through the center of town. City leaders hoped that the development would attract hotels, restaurants, art galleries and tourists. But to make it all happen, they needed the land of a local family business. "Bulldozed" tells the story of a fight over domain, eminent and otherwise.
Ms. Main begins with the members of the Gore family, whose shrimping business has operated in Freeport since the 1940s. They own 330 feet of riverfront land, where shrimp boats dock and unload, and a state-of-the-art processing plant nearby. The family's company, called Western Seafood, employs more than 50 people and pays Freeport nearly $20,000 in taxes every year. Not that such good citizenry was enough to shield the company from the hazards of municipal overreach.
In March 2002, a group of private investors, led by a man named H. Walker Royall, formed a company called Freeport Waterfront Properties. Six months later, consultants hired by the city released a redevelopment plan--and, amazingly, it recommended a private marina, just what Mr. Royall's investors had hoped for. The city did not open the marina project to competition; it just handed it over to Freeport Waterfront. Conveniently, Mr. Royall sat on the board of Sun Resorts, another company that the city selected, also without competition, this time to manage the marina once it was built.
The cozy arrangements didn't stop there. Freeport agreed to give the private investors $6 million in the form of a no-recourse loan. (The city's annual budget was $13 million.) It promised to cover their cost overruns with a loan of up to $400,000. It gave them a tax abatement. And it limited the investors' financial liability to $250,000 in cash, leaving the city on the hook for other cost overruns.
The only obstacle to this sweetheart deal was Western Seafood. It owned the land where Mr. Royall and his friends wanted to build. The city came up with a clever way around this problem. Claiming eminent domain, it proposed to take only part of the company's land--paying the Gores $260,000 in compensation. But the part the city officially wanted was riverfront land. Without it, Western Seafood wouldn't have access to its shrimpboats, and the "problem" of the rest of Western Seafood's land--expensive property, crowded with buildings and industrial equipment--would take care of itself. The city would get it virtually without paying for it.
The tale gets worse. Freeport was in a position to consider building a marina in the first place only because a "guillotine gate" in the river--insulating boats from hurricanes and storm surges--made Freeport a safe harbor. When the guillotine gate needed modernization several years ago, Ms. Main reports, the city didn't have the money for the $300,000 job. So the Gores gave the city a gift of $150,000. If they hadn't been so generous, the city never would have tried to take their land.
Ms. Main's legal background and reporting skills serve her well as she navigates the Gores' messy, twisting fight against city hall. Her tone is usually judicious, though not always. (Recounting one insincere proposal from the city to create a tiny buffer between Western Seafood and the marina, she exclaims: "Buffer, my ass!") From time to time, she steps away from Freeport to give a primer on eminent domain and the legal arguments surrounding the claims of municipalities on private land.
But "Bulldozed" is at heart a story about trouble in a small town, a sort of eminent-domain version of "In Cold Blood," although it lacks a satisfying conclusion. In 2003, the Gores and Freeport took one another to court and fought a long, rancorous battle. After a series of defeats, the family was seemingly victorious. Freeport abandoned its plan for a private marina--only to unveil a plan for a public marina that would also need much of the Gores' land. As "Bulldozed" closes, the two sides are heading back to the courthouse once more.
Mr. Last is a staff writer at The Weekly Standard. You can buy "Bulldozed" from the OpinionJournal bookstore.
WSJ
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“The denial of annual [pay] increases, [Chief Justice John] Roberts wrote, ‘has left federal trial judges—the backbone of our system of justice—earning about the same as (and in some cases less than) first-year lawyers at firms in major cities, where many of the judges are located.’ The cost of rectifying this would be less than 0.004% of the federal budget. The cost of not doing so will be a decrease in the quality of an increasingly important judiciary—and a change in its perspective. Fifty years ago, about 65 percent of the federal judiciary came from the private sector—from the practicing bar—and 35 percent from the public sector. Today 60 percent come from government jobs, less than 40 percent from private practice. This tends to produce a judiciary that is not only more important than ever but also is more of an extension of the bureaucracy than a check on it... The enlargement of the judiciary’s role by the regulatory state requires compensation of the judiciary commensurate with its ever-expanding importance. That importance, although regrettable, is a fact, and so is this: You get the quality—and the perspective—you pay for.” —George Will
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Columbia University
Has No Right to My Land
By NICK SPRAYREGEN
September 3, 2008
In the Fifth Amendment to the U.S. Constitution, the government is permitted to take private property only for "public use."
This clause was once limited to true public projects such as the construction of highways, fire houses and public libraries. But over the last 50 years it has been bastardized by the powerful (in collusion with compliant politicians and the acquiescence of the courts) into a weapon used routinely to forcibly take other people's property for nonpublic uses. What is occurring in West Harlem today is a prime example of this abuse.
Columbia University, a private institution, officially announced its desire for a new campus five years ago. The university zeroed in on the Manhattanville area of Harlem -- between 125th and 134th Streets, and between Broadway and the Hudson River. Since that time, while wielding the sledgehammer of the possible use of eminent domain, Columbia has purchased roughly 80% of Manhattanville.
My family has owned for almost 30 years four commercial Manhattanville properties. We run a self-storage business, plus we lease to various large retailers such as a discount store and a supermarket. For over four years we have been fighting the state and Columbia in their joint attempts to condemn my properties for the school's expansion.
This week, the board of directors of the state agency threatening the condemnation -- the Empire State Development Corporation -- will hold two legally required public hearings, ostensibly to give the public a chance to be "heard." I believe that this is merely perfunctory.
Under New York state law, in order to condemn property the state first has to undertake a "neighborhood conditions study" and declare the area in question "blighted." Earlier this summer the state released its study, which concluded that Manhattanville is indeed "blighted." This gives the state the legal green light to condemn my four buildings and hand them over to the university.
The study's conclusion was unsurprising. Since the commencement of acquisitions in Manhattanville by Columbia, the school has made a solid effort to create the appearance of "blight." Once active buildings became vacant as Columbia either refused to renew leases, pressured small businesses to vacate, or made unreasonable demands that resulted in the businesses moving elsewhere. Columbia also let their holdings decay and left code violations unaddressed.
Only a few years ago, this area was undergoing a resurgence. Virtually all property was occupied, many by long-standing family operations such as my own. Now most of those businesses are gone -- forced out by the university. Still, Columbia has not been able to freeze all positive change in the neighborhood. Just in the past few years, three upscale restaurants have opened here. They seem to be thriving.
There is also a conflict of interest in the condemnation process. The firm the state hired to perform the "impartial" blight study -- the planning, engineering and environmental consultant Allee King Rosen & Fleming, Inc. (AKRF) -- had been retained by Columbia two years earlier to advocate for governmental approval of the university's expansion, including the possible use of eminent domain.
When I go to court in a few months to contest the condemnation, I will face an overwhelmingly unfair process particular to New York, and to eminent domain trials. I will not be permitted to question any of the state or Columbia's representatives, nor will I be allowed to have anyone take the witness stand on my behalf. My attorney will only be provided with 15 minutes to speak to the court on a matter that Columbia and the state have been working on for over four years.
Another problem is that in New York, the precise definition of what is blighted is nowhere to be found. It is virtually impossible to defend oneself from something that is not properly defined.
I am still denied access to documents with facts surrounding the Columbia expansion plan, asked for through Freedom of Information Law (FOIL) requests. I filed 12 different FOIL requests and have gone to court four times. The courts have now twice ruled that it was improper for the state to refuse to hand over all communication between it and AKRF.
Still, I look forward to my day in court. I am cautiously optimistic that it will expose as unconstitutional what Columbia and the state are attempting to do.
Mr. Sprayregen is the president of Tuck-It-Away, a West Harlem based self-storage company.
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I understand lawnmowers have those stupid deadman bars on the handle because a couple boneheads used one to try to trim the hedges, and lost a couple fingers in the process. Rewarding this kind of damn-foolishness only begets more, and gives lawyers and excuse to pursue this kid of idiocy.
But at Least He Got the $10
Jacob Sullum | January 27, 2009, 2:45pm
Last week a jury in Brevard County, Florida, awarded $76.6 million in damages to a construction worker who was paralyzed from the neck down after he dove head first into a foot of water on a dare. Timothy Hoffman, 20 at the time of the injury in 2003, said his supervisor during a project at Sunrise Village Condominiums in Port St. John offered him $10 to do a "belly flop" off a dock into the Indian River Lagoon. He sued the general contractor in charge of the project, C&D Dock Works, arguing that it inadequately trained its supervisors and failed to warn him of the lagoon's shallowness. The company's owner, Charles Brunty, could not afford a lawyer and made an abortive attempt at representing himself, giving up after filing for Chapter 7 bankruptcy in May as a result of the case. It's not clear how much money, if any, Hoffman will actually collect. Brunty gave the Orlando Sentinel a sample of his defense:
"There was no negligence on my part," Brunty said. There was a rail at the edge of the water, he added, indicating a potential danger.
"Why he went into the water, I don't know," Brunty said. "There's got to be some common sense, too."
A local TV station, perhaps out of sympathy for Hoffman, doctored the truth about how he was injured, reporting that "he broke his neck after falling 50 feet from atop a seawall."
http://www.reason.com/blog/show/131290.html
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Supreme Court Steps Closer to Repeal of Evidence Ruling
By ADAM LIPTAK
Published: January 30, 2009
WASHINGTON — In 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule” — the principle that evidence obtained by police misconduct cannot be used against a defendant.
The Reagan administration’s attacks on the exclusionary rule — a barrage of speeches, opinion articles, litigation and proposed legislation — never gained much traction. But now that young lawyer, John G. Roberts Jr., is chief justice of the United States.
This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.
The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.
Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.
Justice Alito replaced Justice Sandra Day O’Connor, who was considered a moderate in criminal procedure cases.
“With Alito’s replacement of O’Connor,” said Craig M. Bradley, a law professor at Indiana University, “suddenly now they have four votes for sure and possibly five for the elimination of the exclusionary rule.”
The four certain votes, in the opinion of Professor Bradley and other legal scholars, are Chief Justice Roberts, Justice Alito, Justice Antonin Scalia and Justice Clarence Thomas, who is also an alumnus of the Reagan administration.
The fate of the rule seems to turn on the views of Justice Anthony M. Kennedy, who has sent mixed signals on the question. As in so many areas of the law, there are indications that the court’s liberal and conservative wings are eagerly courting him. They are also no doubt looking for the case that, with Justice Kennedy’s vote, will settle the issue once and for all.
The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.
Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.
In Herring, Chief Justice Roberts seemed to be advocating those kinds of approaches. “To trigger the exclusionary rule,” he wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”
That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”
The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the case — in which an Alabama man, Bennie D. Herring, was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant — was sloppy recordkeeping in a police database rather than a mistake by an officer on the scene. Since the misconduct at issue in Herring was, in the legal jargon, “attenuated from the arrest,” the decision may apply only to a limited number of cases.
But the balance of the opinion is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”
A broad reading of the decision by the lower courts, Professor Bradley said, means “the death of the exclusionary rule as a practical matter.”
In one of the first trial court decisions to interpret Herring, a federal judge in New Jersey took the broader view, refusing to suppress evidence obtained from computer hard drives under a search warrant based on false information supplied by a Secret Service agent. The agent had told the judge that DVDs found during an earlier search contained child pornography.
This was false: other law enforcement officials had reviewed the DVDs and had found no child pornography. The agent, who was leading the investigation, testified that he did not know of that review when he made his statement.
“This conduct,” Judge Stanley R. Chesler wrote a week after Herring was decided, “while hardly qualifying as a model of efficient, careful and cooperative law enforcement, does not rise to the level of culpability that the Supreme Court held in Herring must be apparent for the exclusionary rule to serve its deterrent purpose and outweigh the cost of suppressing evidence.”
Constitutional adjudication is not a science experiment, and it is often hard to say for sure what difference a change in personnel makes. In the case of the exclusionary rule, though, you can get pretty close.
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Page 2 of 2)
On Jan. 9, 2006, just months after Chief Justice Roberts joined the court, the justices heard arguments in Hudson v. Michigan. The police in Detroit had violated the constitutional requirement that they knock and announce themselves before storming the home of Booker T. Hudson, and the question in the case was whether the drugs they found should be suppressed under the exclusionary rule
Justice O’Connor, in her last weeks on the court while the Senate considered Justice Alito’s nomination, was almost certainly the swing vote, and she showed her cards.
“Is there no policy protecting the homeowner a little bit and the sanctity of the home from this immediate entry?” she asked a government lawyer, her tone sharp and flinty.
David A. Moran, who argued the case for Mr. Hudson, was feeling good after the argument. “I was pretty confident that I’d won,” he said in a recent interview. “O’Connor had pretty clearly spoken on my side.”
Three months later, the court called for reargument, signaling a 4-to-4 deadlock after Justice O’Connor’s departure. Justice Alito was on the court now, and the tenor of the second argument was entirely different.
Now Justice Stephen G. Breyer, who seemed to have been at work on a majority opinion in favor of Mr. Hudson, saw a looming catastrophe. The court, Justice Breyer said, was about to “let a kind of computer virus loose in the Fourth Amendment.”
Justice Breyer had reason to be wary. When the 5-to-4 decision was announced in June, the court not only ruled that violations of the knock-and-announce rule do not require the suppression of evidence but also called into question the exclusionary rule itself.
In a law review article later that year, Mr. Moran went even further. “My 5-4 loss in Hudson v. Michigan,” he wrote, “signals the end of the Fourth Amendment as we know it.”
Justice Scalia, writing for the majority, said that much had changed since the Mapp decision in 1961. People whose rights were violated may now sue police officers, and police departments are more professional. In light of these factors, he wrote, “resort to the massive remedy of suppressing evidence of guilt is unjustified.”
Justice Scalia cited the work of a criminologist, Samuel Walker, to support his point about increased police professionalism. Professor Walker responded with an opinion article in The Los Angeles Times saying that Justice Scalia had misrepresented his work. Better police work, Professor Walker said, was a consequence of the exclusionary rule rather than a reason to do away with it.
Justice Kennedy signed the majority decision, adopting Justice Scalia’s sweeping language. Oddly, though, he also wrote separately to say that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.”
Another important Warren Court decision on criminal procedure, Miranda v. Arizona, appears to remain secure. Miranda, as anyone with a television set knows, protected a suspect’s right to remain silent and the right to a lawyer by requiring a warning not found in the Constitution. The decision, like Mapp, was the subject of much criticism in the Reagan years.
But in a pragmatic 7-to-2 decision in 2000, the Rehnquist Court refused to revisit the issue. Miranda warnings, Chief Justice William H. Rehnquist wrote for the majority, had “become embedded in routine police practice” and had “become part of the national culture.” Justices Scalia and Thomas dissented.
Defenders of the exclusionary rule breathed a sigh of relief in November
“From the point of view of a liberal concerned about criminal procedure,” said Yale Kamisar, a law professor at the University of San Diego, “we were saved by Barack Obama in the nick of time. If ever there was a court that was establishing the foundations for overthrowing the exclusionary rule, it was this one.”
For now, said Pamela Karlan, a law professor at Stanford, “they don’t have five votes to disavow the exclusionary rule by name.”
At the same time, Professor Karlan said, “you are not going to see any dimension along which there is going to be an expansion of defendants’ rights in this court.”
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Justice Ginsburg was my Constitutional Law prof at Columbia.
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http://news.yahoo.com/s/ap/20090205/ap_on_go_su_co/scotus_ginsburg;_ylt=AowRVyeYqrWNA2W32SNRwJfgtY54
Ginsburg is hospitalized with pancreatic cancer
AP – In this Oct. 23, 2008 file photo, Supreme Court Justice Ruth Bader Ginsburg reads from a small book version …
Slideshow: Supreme Court Justice Ruth Bader Ginsburg WASHINGTON – Supreme Court Justice Ruth Bader Ginsburg had surgery Thursday after being diagnosed with pancreatic cancer, the court said.
Ginsburg, 75, had the surgery at the Memorial Sloan-Kettering Cancer Center in New York. She will remain in the hospital for seven to 10 days, said her surgeon, Dr. Murray Brennan, according to a release issued by the court.
The court announcement said the cancer is apparently in the early stages.
In 1999, Ginsburg had surgery for colon cancer and had chemotherapy and radiation treatment. The only woman on the court, she has been a justice since 1993.
The pancreatic cancer was discovered during a routine, annual exam late last month at the National Institutes of Health in Bethesda, Md. A CAT scan revealed a tumor measuring about 1 centimeter across the center of the pancreas, the court said. Pancreatic cancer is one of the most deadly cancers: Nearly 38,000 cases a year are diagnosed and overall, fewer than 5 percent survive five years. The reason: Fewer than one in 10 cases are diagnosed at an early stage — like Ginsburg's appears to be — before the cancer has begun spreading through the abdomen and beyond. That's because early pancreatic cancer produces few symptoms other than vague indigestion. Even when caught early, surgery for pancreatic cancer is arduous. Doctors typically remove parts of the pancreas, stomach and intestines. Radiation and chemotherapy are common after surgery.
Ginsburg has recently told her former law clerks and others that she envisioned serving on the court into her 80s, although those comments were made before the latest diagnosis.
Ginsburg is one of only two female justices ever. The other is Sandra Day O'Connor, who retired in 2006. In her previous bout with cancer, Ginsburg received treatment throughout the court's term and never missed a day on the bench. The justices, in the midst of a winter break, hold their next private conference on Feb. 20 and return to the bench on Feb. 23.
The court's announcement offered few details about the surgery. Brennan is a renowned surgeon whose expertise is treatment of pancreatic cancers and tumors on other soft tissues, like the adrenal and thyroid glands. He was chair of Memorial Sloan-Kettering's surgery department from 1985 until June 2006.
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I don't get it. This guy never faced justice for essentially child abuse and the President of France is outraged he is finally being brought to justice after fleeing to safe havens for all these years.
***Sarkozy wants ‘resolution’ to Polanski arrest
By Scheherazade Daneshkhu in Paris
Published: September 27 2009 13:22 | Last updated: September 27 2009 16:28
President Nicolas Sarkozy said he hoped for a “speedy resolution” to the arrest in Switzerland of Roman Polanski, the film director who has French nationality.
Speaking on behalf of the French president, Frederic Mitterand, culture minister, said on Sunday he was “amazed” to hear that Mr Polanski was detained by Swiss police on Saturday night, at the request of US authorities.
EDITOR’S CHOICE
Workplace suicides spark French outcry - Sep-18Christopher Caldwell: French suicides complicate corporate life - Sep-18Global Insight: Case poised to put French politics on trial - Sep-18France to count happiness in GDP - Sep-15French opposition sets out party reform plans - Aug-29French minister calls for ban on burka - Aug-14Mr Polanski, 76, was travelling to pick up an award at a Zurich film festival when he was arrested on a 1978 warrant. In 1977, he was arrested in Los Angeles for unlawful sex with an underage girl, which the director admitted. He fled before being sentenced and has been considered a fugitive from US justice ever since.
He lives in France, where he is protected by its limited extradition laws with the US and avoids visits to countries likely to extradite him.
Mr Mitterand said he was in close contact with Mr Sarkozy who was giving the matter “his utmost attention”.
Born in Paris of Polish parents of Jewish origin, Mr Polanski won Best Director Oscar in 2003 for The Pianist. His other celebrated films include Rosemary’s Baby and Chinatown.
The festival directors, who had been planning to give Mr Polanski a lifetime achievement award, said they had received the news of his arrest with “great consternation and shock,” adding: “We are unable to judge the legal background surrounding the arrest.”
The Franco-Polish director made legal history in the UK in 2005 by becoming the first libel claimant to sue in the English courts using a video-link. Fearing extradition, Mr Polanski did not travel to the UK and successfully won a libel case against Vanity Fair magazine in London’s High Court after giving evidence via video-link.
The House of Lords ruled that his right to bring the libel claim trumped the fact that he was a fugitive from justice.
Copyright The Financial Times Limited 2009. You may share using our article tools. Please don't cut articles from FT.com and redistribute by email or post to the web.****
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This comes recommended by someone whom I greatly respect. I just signed up!
Become the 10 Supreme and decide pending cases along with the other 9 Supremes.
http://www.fantasyscotus.net/
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14 Dead, not 13. So many categories this could fall under... Leave it to Michelle Malkin to pick up what everyone else is ignoring, so far.
Was a crime committed (on the 14th victim)? Was a life ended? Apart from the law and regarding the 14th, does this (in your opinion) violate Thou shalt not kill?
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"seldom mentioned is the most hidden victim — soldier Francheska Velez’s unborn baby. Velez was on maternity leave when she stopped at Ft. Hood, where she and the child she carried in her womb fell victim to Hasan’s bullet."
http://michellemalkin.com/2009/11/11/the-14th-murder-victim-of-the-fort-hood-jihadi-massacre/
The Obama Justice Department will never prosecute, but raising the question provides a teachable moment:
In the interest of true justice, Hasan should be prosecuted under the Unborn Victims of Violence Act, also known as Laci and Conner’s law, named for the pregnant woman and unborn baby who were murdered in California by Scott Peterson, the baby’s father.
It would seem that the law applies in this case for three reasons: the act of violence was committed on federal property…the shooting was allegedly done by a member of the military…and the violence could be classified as an act of terrorism.
…The Obama Administration has a moral obligation to press for prosecution of Hasan under the Unborn Victims of Violence Act. If such a legal path is ignored, it will demonstrate to the world that the President is caving into a pro-abortion lobby who will not recognize the legal rights of any child in the womb—even a child whose mother desperately longs to give birth.
My father had a favorite saying which he applied to criminal and terroristic acts: “Who weeps for the victim?” Let’s hope that, in this case, the President weeps for the victim who never had a chance to see a mother’s loving face.
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Here's the law:
The Unborn Victims of Violence Act of 2004 (Public Law 108-212) is a United States law which recognizes a "child in utero" as a legal victim, if he or she is injured or killed during the commission of any of over 60 listed federal crimes of violence. The law defines "child in utero" as "a member of the species Homo sapiens, at any stage of development, who is carried in the womb."[2]
The law is codified in two sections of the United States Code: Title 18, Chapter 1 (Crimes), §1841 (18 USC 1841) and Title 10, Chapter 22 (Uniform Code of Military Justice) §919a (Article 119a).
The law applies only to certain offenses over which the United States government has jurisdiction, including certain crimes committed on Federal properties, against certain Federal officials and employees, and by members of the military. In addition, it covers certain crimes that are defined by statute as federal offenses wherever they occur, no matter who commits them, such as certain crimes of terrorism.
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Police property seizures ensnare even the innocent
Money raised by Metro Detroit agencies increases 50% in five years
George Hunter and Doug Guthrie / The Detroit News
Local law enforcement agencies are raising millions of dollars by seizing private property suspected in crimes, but often without charges being filed -- and sometimes even when authorities admit no offense was committed.
The money raised by confiscating goods in Metro Detroit soared more than 50 percent to at least $20.62 million from 2003 to 2007, according to a Detroit News analysis of records from 58 law enforcement agencies. In some communities, amounts raised went from tens of thousands to hundreds of thousands -- and, in one case, into the millions.
"It's like legalized stealing," said Jacque Sutton, a 21-year-old college student from Mount Clemens whose 1989 Mustang was seized by Detroit police raiding a party. Charges against him and more than 100 others were dropped, but he still paid more than $1,000 to get the car back.
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"According to the law, I did nothing wrong -- but they're allowed to take my property anyway. It doesn't make sense."
While courts have maintained the government's right to take property involved in crimes, police seizures -- also known as forfeitures -- are a growing source of friction in Michigan, especially as law enforcement agencies struggle to balance budgets.
"Police departments right now are looking for ways to generate revenue, and forfeiture is a way to offset the costs of doing business," said Sgt. Dave Schreiner, who runs Canton Township's forfeiture unit, which raised $343,699 in 2008. "You'll find that departments are doing more forfeitures than they used to because they've got to -- they're running out of money and they've got to find it somewhere."
The increase in property seizures merely is a byproduct of diligent law enforcement, some law enforcement officials say.
"We're trying to fight crime," said Police Chief Mike Pachla of Roseville, where the money raised from forfeitures jumped more than tenfold, from $33,890 to $393,014.
"We would be just as aggressive even if there wasn't any money involved."
Roseville had among the most dramatic increases over the five-year period examined by The News. But several other agencies also more than doubled their takes, including Novi, Trenton, Farmington Hills, Southfield, the Michigan State Police, Shelby Township, Livonia, Warren and Romulus.
The increase in money coming in leads to a higher percentage of the police budget being covered by seizures. In Roseville, the share of the police budget raised from forfeitures went from 0.3 percent to 4.2 percent. In Romulus, it jumped from 4.5 percent to 11.2 percent from 2003-2007, the most recent years for which comparable records were available. Some agencies said records weren't available.
Police and prosecutors profit because citizens must either pay to get their confiscated property back or lose their cars, homes and other seized assets to the arresting agencies, which auction them off.
The increased reliance on seized property to fund police operations amounts to a trade-off for law enforcement. The tough economy may be prompting law enforcement agencies to use an "entrepreneurial spirit," but that makes for bad public relations, said Tom Hendrickson, director of the Michigan Association of Chiefs of Police.
Courts support seizures
The friction over seizures is a result of two competing legacies in U.S. law. While the Fourth Amendment, adopted in 1791, protects the right of citizens to be free from unreasonable searches and seizures, the Supreme Court ruled in 1827 that a Spanish-owned ship could be seized after it fired on a U.S. vessel. Whether or not the crew was convicted, the brig was the principal offender, it ruled.
And 169 years later, the nation's high court reaffirmed the notion when it ruled that a Royal Oak woman couldn't challenge the seizure of the family sedan after her husband was caught having sex with a prostitute inside, even though she didn't know the car was being used for that purpose.
Just last month, the high court heard the case of six people from Chicago who sought prompt hearings on the seizure of their cars and money. When a federal attorney told the court the government needs time to determine who owns a car and to investigate that person's connection to the criminal activity, Justice Sonia Sotomayor said: "I'm sorry. You take the car and then you investigate?"
A ruling, expected to come on procedural grounds, is due by the end of the Supreme Court's term in June and isn't expected to change law on property forfeiture.
"Unfortunately, the Supreme Court so far has ruled that they're not unconstitutional," said Kary Moss, director of the Michigan American Civil Liberties Union.
Modern civil forfeiture laws originally were passed in the 1970s and 1980s to allow police to seize the means of committing crimes. For instance, if a drug dealer was using a boat to transport drugs, the law enabled officers to confiscate the vessel before the case went to trial.
But the laws expanded over the years to allow the seizure of property that had only a loose connection to the alleged crime, and police now are taking property for infractions that would not have resulted in forfeitures in the past, including minor drug possession, gambling, drag racing, drunken driving and even loitering near illegal activity.
While laws governing seizures by federal authorities have been reformed to make it more difficult for them to seize property, state legislatures, including Michigan's, have not followed suit.
The Wayne County Prosecutor's Office often makes people pay to get their seized property back without filing any charges -- and in some cases citizens such as Sutton must pay even though police and prosecutors admit they can't prove any law was broken. In his case, police raided a dance party they thought was a blind pig and issued tickets to more than 100 people, all of which were later dropped.
Prosecutor Kym Worthy declined comment, but issued a written statement explaining that she wants to get criminals off the street, and that the law allows her office to seize property without filing charges.
Canton's Sgt. Schreiner insisted forfeiture laws should be wielded responsibly.
"There's a right way and a wrong way to do forfeitures," he said. "First of all, you should always file charges; if you don't have a case against someone, you shouldn't seize their property.
"But even when there is a crime, the law should be used as it was intended. If we seize a computer that was used to commit identity fraud, that's a good thing. But if Joe Citizen complains that he was arrested for a small amount of drugs, and we took his refrigerator and silverware, then I think he has a valid complaint."
Agencies ramp up efforts
Many of the increases in forfeitures obtained by local police agencies aren't the result of money hunting, officials say, although they also admit their efforts to take property have increased.
When Romulus saw a 118 percent jump in forfeiture revenues from 2003-07, the increase was not the result of more criminal activity, Chief Michael St. Andre said.
"It's because our forfeiture efforts have ramped up in the past few years," he said.
Revenue was not a primary concern, he said, "but it is nice when we're able to purchase things we need from arrests.
"I don't have to go to the city and ask for things like bulletproof vests or computers."
In Trenton, forfeitures hit a high of $874,499 in 2006. Police Chief William Lilienthal said his department joined a federal drug task force in 2005 that focused on asset seizures, which partially accounts for the increase.
Novi saw the biggest revenue increase in forfeiture revenues, going from $12,278 in 2003 to $2.7 million in 2007. But police officials said that spike is largely attributed to a 2005 arrest of a nationwide drug cartel that netted millions of dollars over a three-year period.
Yet adding to the dissent over seizures is that police agencies are able and even required to return the proceeds from forfeitures into more law enforcement activities, which can make a seizure look like a money-grab even if it isn't.
That's risky business, said Hendrickson, who represents the state's chiefs of police.
"Police departments should never make revenue a prime concern," he said. "That undermines people's confidence in their police officers."
Under state law, police departments may use the funds raised from most seizures indiscriminately within their own departments, although drug forfeiture money must be put back into fighting drugs.
But even that rule is being relaxed because of the tough economy. Earlier this year, Romulus police were able to purchase 16 new Dodge Chargers from drug forfeiture funds, which usually isn't allowed.
"They allowed it this year because the economy is so bad, it's an emergency situation," St. Andre said. "We contacted the DEA and asked permission to use that money to purchase vehicles."
In Trenton, forfeiture revenues paid for a new firing range.
"Forfeitures are a way to help supplement your budgetary issues," Trenton Chief William Lilienthal said.
"You can't supplant your budget with them, but you can supplement it. If you need something, you can utilize those funds to purchase it."
ghunter@detnews.com The Detroit News' Bridget Baulch and Mike Wilkinson contributed.
http://www.detnews.com/article/20091112/METRO/911120388
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BBG:
You have raised a matter that I confess gets me quite hot. I find this whole area of the law to be quite outrageous.
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I have no problem with the seizure of property post-conviction, but the "civil forfeiture" as currently practiced is indeed outrageous. I can't believe that the courts have upheld this practice.
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This comes recommended by someone whom I greatly respect. I just signed up!
Become the 10 Supreme and decide pending cases along with the other 9 Supremes.
http://www.fantasyscotus.net/
Nope not playing it that way. If there was a column for which way would you judge it, then it would be interesting to compare my choice with the justices. I am not into the brain sweat of trying to predict other peoples actions.
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On Seizure of Property- I remember when this was only in relation to DRUGS and ONLY Drug Crime. The usual slide down the slippery slope you have with anything done in govt. This little change was another camels nose under the tent, and that expanded into the camel walking into and out of my tent whenever it pleased under color of the law.
Immediate seizure for immediate safety, I understand. This "if you want it back come down to the office and fill out the forms" stuff is just wrong, I should get whatever property- pocket knife, gun, tools, whatever back Immediately when the situation has abated, or the item has been "processed".
If the govt want to keep it for evidence and future reference, then I am owed compensation. I am not a wealthy citizen who can go and replace my handgun, or vehicle the next day, heck sometimes I do not have enough cash/change to get a bus pass, and the police are not the king's men who should expect us to bow down and submit either. That is the attitude they have, from my experience.
I avoid a lot of confrontations/ look the other way simply because THE LAW puts up too much of a barrier for me to surmount with my resources, and do the right thing. If the legal system was truly about justice, that would not be an issue.
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If something is seized as evidence, it is retained until all legal avenues are exhausted.
best evidence rule
A rule of evidence that demands that the original of any document, photograph, or recording be used as evidence at trial, rather than a copy. A copy will be allowed into evidence only if the original is unavailable.
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I think we have a first! GM siding against a law enforcement practice! :lol:
Anyway, I am in complete agreement. Our forfeiture laws, and the SCOTUS's affirmation of them, are an outrage.
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Although not a law enforcement practice, I have condemned Kelo. Does that count? :-D
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No , , , because it is not a law enforcement practice :-D
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I will point out that we have not extensively covered law enforcement practices. Mostly it's been "OMG, the police have a camera! We are but minutes away from an orwellian dictatorship!" And then me trying to inject a dose of reality into the discussion.
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Kyllo v. United States
Facts of the Case:
A Department of the Interior agent, suspicious that Danny Kyllo was growing marijuana, used a thermal-imaging device to scan his triplex. The imaging was to be used to determine if the amount of heat emanating from the home was consistent with the high-intensity lamps typically used for indoor marijuana growth. Subsequently, the imaging revealed that relatively hot areas existed, compared to the rest of the home. Based on informants, utility bills, and the thermal imaging, a federal magistrate judge issued a warrant to search Kyllo's home. The search unveiled growing marijuana. After Kyllo was indicted on a federal drug charge, he unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. Ultimately affirming, the Court of Appeals held that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home, and even if he had, there was no objectively reasonable expectation of privacy because the imager "did not expose any intimate details of Kyllo's life," only "amorphous 'hot spots' on the roof and exterior wall."
Question:
Does the use of a thermal-imaging device to detect relative amounts of heat emanating from a private home constitute an unconstitutional search in violation of the Fourth Amendment?
Conclusion:
Yes. In a 5-4 opinion delivered by Justice Antonin Scalia, the Court held that "[w]here, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." In dissent, Justice John Paul Stevens argued that the "observations were made with a fairly primitive thermal imager that gathered data exposed on the outside of [Kyllo's] home but did not invade any constitutionally protected interest in privacy," and were, thus, "information in the public domain."
Decisions
Decision: 5 votes for Kyllo, 4 vote(s) against
Legal provision: Amendment 4: Fourth Amendment
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Do you think the court decided correctly in Kyllo?
As for your mockery of "Oh my god, the police have a camera!"-- yes you bring lucid rejoinders, but IMHO we also need to address the profound implications of CAMERAS EVERYWHERE, RECORDING MOST EVERYTHING.
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Mostly it's been "OMG, the police have a camera! We are but minutes away from an orwellian dictatorship!" And then me trying to inject a dose of reality into the discussion.
I'd take issue with this caricature if I didn't know it would lead us into another circuitous conversation with each of us staking out turf at either extreme. . . .
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Do you think the court decided correctly in Kyllo?
As for your mockery of "Oh my god, the police have a camera!"-- yes you bring lucid rejoinders, but IMHO we also need to address the profound implications of CAMERAS EVERYWHERE, RECORDING MOST EVERYTHING.
Yes, the court was correct, although I'd actually draw a different bright line rather than "not currently in the general public's use". Rather, I'd use a standard that the 4th applies equally to a police officer physically intruding into a place where there is a reasonable expectation of privacy, or by any technological means, breaching that privacy. A search is a search, no matter if it's "actual" vs. "virtual".
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As far as cameras everywhere, in the US the vast majority of the cameras are privately owned and thus not subject to the 4th amendment. Cameras in public spaces are no different than having a police officer view what is open to anyone in that public place.
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Is there or is there not a slippery slope that ends with us like the UK, being surveilled by the state wherever we go?
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I think we should look at the topic from a cost/benefit analysis. Outside of certain specific environments, I'm thinking the money would be better spent on police officers.
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Cost Benefit does not apply to people, it has already been determined that lives are not bought and sold. I do not trust human beings to get it right with any kind of predictability. The old Lady in Florida and the Kids in New England are simply too much used of SWAT levels of force. Regular beat cops screwed up recently in Henderson where someone appears to have ended up dead over a parking ticket and a language barrier. (Henderson cops in nNevada have had a "rep." for years, they really stepped in it this time)
The camera surveillance is to invasive, yes there is no expectation of privacy, but to be on camera just because you are in public? No that is not an answer either. Cameras at ATMs and Banks and places where there is an "expectation of monitoring' is fine, but generic authorization for general surveillance, nope I do not agree with that.
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As far as cost benefit analysis goes GM how does one value the cost to freedom of continuously being under scrutiny? Or is the cost of which you speak merely that of the technology itself-- which in that the cost of a given level of technology tends to decline rapidly over time, tends to mean no protection at all.
You're a bright guy and you do a good job of building seamless webs of logic, but on this one there is something here that cannot be evaded or avoided.
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I'm unaware of anywhere in the US where one is constantly under scrutiny, especially government scrutiny. I'm curious what sort of legislation you'd suggest to restrict the use of cameras. Does the local stop-n-rob or Walmart get to keep their cameras? Howabout the security cameras at schools? Do Private Investigators working insurance fraud cases get to use cameras? Does a patrol car keep it's cameras?
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You just used the L word again! I can hear all the good little bureaucrats jumping up and down with glee! Another reason to raise taxes, become more overbearing with the use of force to tell more people how to run their life!
The property owner puts up whatever cameras he sees fit, it is his land. The cops like those cameras, it helps them to remember to toe the line (a good thing) and also serves to document various aspects of their job- fine. I know I am being surveyed, the cop is in my business.
It is all the other stuff. A cop cruising around with a license plate scanner "looking for business" is definitely going to be one of the ones I am going to dislike. Most of that equipment is more for revenue collection than actual crime catching anyway. The speeding cams, the stop sign cams. The speed traps, the attitude that everyone is a crook. The stopping of random people behaving "suspiciously" and checking pockets, they behave suspiciously because 2 funny dressed goons from the govt are here using force against innocent citizens. Cops are walking with their hand on their gun way to often, that is almost a direct threat of anyone within sight. Unethical when police are the disturbance of the peace even though they are the LAW.
I do not need anyone to watch over me, I would gladly embrace the privilege of a free man to starve to death if he cannot find a way to eat. It solves a whole bunch of problems rather nicely. I never want to be a burden thru taxes that are taken by force from another person for welfare. Taxes are required by LAW, I am stealing indirectly thru a proxy. That is still as unethical as stealing a pie of the neighbors windowsill. I do not need someone to protect me, any one who attacks me is assuming the risk of losing the fight. I do not need anyone to tell me who initiated the attack first. All a cop should do is verify "fair fight", and tell the kin where to pick up the looser (hospital, or morgue). The crowd will know who the criminal is and point that out if I fail to protect my right to life. It is unethical to remove a persons ability to defend himself, by requiring me to run away and call a cop, that is exactly what is being done, because there is often no option to run (bullets are pretty fast, knives/rocks can be thrown, etc.).
Yeah it is the LAW but an unethical law is worse than no law at all, and that is why laws are observed more in the breaking than the keeping.
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I'm feeling kinda silly these days. I'm something of a geek and a big time early adopter so I've glommed on to a Google Voice account as well as Google Wave, and have all the above integrated with various others stuff. I'll be out in bum fornication Kentucky next week but will have about six integrated ways to keep in touch with work including by video if need be.
I mention all this because of a paranoid fantasy: what if Google was a wholly owned subsidiary of some spook agency? Someone leaves a voicemail on my Google Voice account and it gets transcribed into a text email that finds me wherever I am. If they can transcribe a voicemail that quickly they could certainly do the same to any conversation I route through them. They have my web history, and as I start getting into Wave they'll have those collaborations too. Expect they have some of my shopping and doubtless other stuff; link it all together and a pretty complete picture of me emerges.
Well Google doesn't have to be wholly owned as there is the Patriot Act and FISA amendment that allow the feds to co-opt just about any communications resource to their end. NSA is building a new storage facility in Utah rumored to have yottabytes (1 yottabyte=1,000,000,000,000,000GB) of drive space where all sorts of electronic utterances could be stored and collated. The thought of my accreted internet wanderings and warblings being stored somewhere and then used for who knows what end down the line give me the willies. Plenty of times and places where my anti-federal, anti-authority, well-armed, somewhat trained perspectives and predilections would have lead to a gulag or worse.
I say all this as a reaction to some of the discussion occurring currently and as preface to this CATO piece. Said piece has a lot of links to Electronic Frontier, Wired, and other sources that are will worth exploring. I fret for a country that has yottabytes of data about their citizens stored and I fear the day looms when a politician will put said data to a mass, malign use.
CATO piece follows:
A Handy PATRIOT Act Cheat Sheet
Posted by Julian Sanchez
While there are a slew of USA PATRIOT Act reform bills buzzing about Capitol Hill, the focus in Congress is now on two chief contenders, reported out by the House and Senate judiciary committees respectively. The very very short version is that the Senate version renews expiring PATRIOT powers with very few modifications, and that the House version includes an array of moderately more robust civil liberties safeguards. As Kevin Bankston of the Electronic Frontier Foundation has argued cogently, these differences are really far less important than the need to reform the FISA Amendments Act, which vastly expanded the surveillance powers of the National Security Agency, in effect permitting the Bush administration’s program of warrantless wiretapping to proceed with some cosmetic trappings of oversight. Still, the House bill does go some ways toward restoring the quaint notion that government should pry in to the private records of its citizens only when some evidence exists to provide grounds for individualized suspicion.
The Obama administration, alas, has decided to back the Senate’s bill, though the Justice Department also expressed “concerns” about the handful of actually-substantive checks on government spying power, and made clear that it intends to continue “working with the Committee” to gut those before the bill reaches the floor. For those with a taste for the gory details, Wired points to CDT’s handy dandy cheat sheet comparing the main provisions of the two bills.
http://www.cato-at-liberty.org/2009/11/16/a-handy-patriot-act-cheat-sheet/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Cato-at-liberty+%28Cato+at+Liberty%29
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I'm feeling kinda silly these days. I'm something of a geek and a big time early adopter so I've glommed on to a Google Voice account as well as Google Wave, and have all the above integrated with various others stuff. I'll be out in bum fornication Kentucky next week but will have about six integrated ways to keep in touch with work including by video if need be.
I mention all this because of a paranoid fantasy:
**I'm glad you have the insight to recognize this is a paranoid fantasy.**
what if Google was a wholly owned subsidiary of some spook agency? Someone leaves a voicemail on my Google Voice account and it gets transcribed into a text email that finds me wherever I am. If they can transcribe a voicemail that quickly they could certainly do the same to any conversation I route through them. They have my web history, and as I start getting into Wave they'll have those collaborations too. Expect they have some of my shopping and doubtless other stuff; link it all together and a pretty complete picture of me emerges.
**And aformentioned spook agency would care why?**
Well Google doesn't have to be wholly owned as there is the Patriot Act and FISA amendment that allow the feds to co-opt just about any communications resource to their end. NSA is building a new storage facility in Utah rumored to have yottabytes (1 yottabyte=1,000,000,000,000,000GB) of drive space where all sorts of electronic utterances could be stored and collated. The thought of my accreted internet wanderings and warblings being stored somewhere and then used for who knows what end down the line give me the willies. Plenty of times and places where my anti-federal, anti-authority, well-armed, somewhat trained perspectives and predilections would have lead to a gulag or worse.
**Yeah, they'll get to you as soon as they roll up the muslim army majors who just happen to be dialoging with AQ affilitated imams about jihad.**
I say all this as a reaction to some of the discussion occurring currently and as preface to this CATO piece. Said piece has a lot of links to Electronic Frontier, Wired, and other sources that are will worth exploring. I fret for a country that has yottabytes of data about their citizens stored and I fear the day looms when a politician will put said data to a mass, malign use.
**Please cite the source where the yottabytes will be used to document our collective warblings.**
CATO piece follows
A Handy PATRIOT Act Cheat Sheet
Posted by Julian Sanchez
While there are a slew of USA PATRIOT Act reform bills buzzing about Capitol Hill, the focus in Congress is now on two chief contenders, reported out by the House and Senate judiciary committees respectively. The very very short version is that the Senate version renews expiring PATRIOT powers with very few modifications, and that the House version includes an array of moderately more robust civil liberties safeguards. As Kevin Bankston of the Electronic Frontier Foundation has argued cogently, these differences are really far less important than the need to reform the FISA Amendments Act, which vastly expanded the surveillance powers of the National Security Agency, in effect permitting the Bush administration’s program of warrantless wiretapping to proceed with some cosmetic trappings of oversight. Still, the House bill does go some ways toward restoring the quaint notion that government should pry in to the private records of its citizens only when some evidence exists to provide grounds for individualized suspicion.
The Obama administration, alas, has decided to back the Senate’s bill, though the Justice Department also expressed “concerns” about the handful of actually-substantive checks on government spying power, and made clear that it intends to continue “working with the Committee” to gut those before the bill reaches the floor. For those with a taste for the gory details, Wired points to CDT’s handy dandy cheat sheet comparing the main provisions of the two bills.
http://www.cato-at-liberty.org/2009/11/16/a-handy-patriot-act-cheat-sheet/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Cato-at-liberty+%28Cato+at+Liberty%29
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Cost Benefit does not apply to people, it has already been determined that lives are not bought and sold.
**I was discussing the use of cameras vs. hiring more police officers as a budgetary matter, although I will point out that lives saved or lost do figure into the equasion.**
I do not trust human beings to get it right with any kind of predictability. The old Lady in Florida and the Kids in New England are simply too much used of SWAT levels of force.
**Ohhhkayyyyyy. What old lady in Florida? What kids in New England? What does "are simply too much used of SWAT levels of force." mean?**
Regular beat cops screwed up recently in Henderson where someone appears to have ended up dead over a parking ticket and a language barrier. (Henderson cops in nNevada have had a "rep." for years, they really stepped in it this time)
** And you know the Henderson cops screwed up how, exactly? You were there? What is the basis for you to judge the use of force by a law enforcement officer. What's your training and experience on the topic?**
The camera surveillance is to invasive, yes there is no expectation of privacy, but to be on camera just because you are in public? No that is not an answer either. Cameras at ATMs and Banks and places where there is an "expectation of monitoring' is fine, but generic authorization for general surveillance, nope I do not agree with that.
**And your policy solution is what?**
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You just used the L word again! I can hear all the good little bureaucrats jumping up and down with glee! Another reason to raise taxes, become more overbearing with the use of force to tell more people how to run their life!
**And instead of the rule of law, you'd prefer what?**
The property owner puts up whatever cameras he sees fit, it is his land. The cops like those cameras, it helps them to remember to toe the line (a good thing) and also serves to document various aspects of their job- fine. I know I am being surveyed, the cop is in my business.
It is all the other stuff. A cop cruising around with a license plate scanner "looking for business" is definitely going to be one of the ones I am going to dislike.
**Actually, doing traffic is one of the best ways to catch fugitive felons and roll up crimes before they happen. The career criminal stopped for a minor traffic violation that ends up getting arrested isn't free to victimize you the next day.**
Most of that equipment is more for revenue collection than actual crime catching anyway.
**Wrong, as pointed out above.**
The speeding cams, the stop sign cams. The speed traps, the attitude that everyone is a crook.
**The stop sign cameras save lives. Speed enforcement saves lives. Like it or not, those are the laws created by state legislatures and signed by governors and upheled by the courts. Law enforcement just enforces those laws.**
The stopping of random people behaving "suspiciously" and checking pockets, they behave suspiciously because 2 funny dressed goons from the govt are here using force against innocent citizens.
**First read up on a Terry Stop. Facts are good. Having an informed opinion is a good thing, you'll find. My kingdom for a libertarian that can debate from facts rather than emotion.**
Cops are walking with their hand on their gun way to often, that is almost a direct threat of anyone within sight. **Uh huh. What's you training and experience in the use of defensive firearms. Are you a criminal? What do you frighten so easily?** Unethical when police are the disturbance of the peace even though they are the LAW. ** Really? Please cite the statute you are alleging was/is being violated?**
I do not need anyone to watch over me,
**Really? for such an independent tough guy, you seem to get scared awful easy.**
I would gladly embrace the privilege of a free man to starve to death if he cannot find a way to eat.
**Well, based on your prior post where you state that you can't afford a bus pass, it's seems you are well on your way there.**
It solves a whole bunch of problems rather nicely. I never want to be a burden thru taxes that are taken by force from another person for welfare. Taxes are required by LAW, I am stealing indirectly thru a proxy. That is still as unethical as stealing a pie of the neighbors windowsill. I do not need someone to protect me, any one who attacks me is assuming the risk of losing the fight. I do not need anyone to tell me who initiated the attack first. All a cop should do is verify "fair fight", and tell the kin where to pick up the looser (hospital, or morgue). The crowd will know who the criminal is and point that out if I fail to protect my right to life. It is unethical to remove a persons ability to defend himself, by requiring me to run away and call a cop, that is exactly what is being done, because there is often no option to run (bullets are pretty fast, knives/rocks can be thrown, etc.).
Yeah it is the LAW but an unethical law is worse than no law at all, and that is why laws are observed more in the breaking than the keeping.
**Rather than be angry at law enforcement, you should focus that rage on whomever was supposed to educate you. Print out a copy of your posts and take them to an attorney so they can file a tort claim on your behalf. **
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Ahem , , ,
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I mention all this because of a paranoid fantasy:
**I'm glad you have the insight to recognize this is a paranoid fantasy.**
Perhaps here, perhaps now. It certainly not the case in Russia, China, and many other places. Are you of the opinion it could never happen here?
what if Google was a wholly owned subsidiary of some spook agency? Someone leaves a voicemail on my Google Voice account and it gets transcribed into a text email that finds me wherever I am. If they can transcribe a voicemail that quickly they could certainly do the same to any conversation I route through them. They have my web history, and as I start getting into Wave they'll have those collaborations too. Expect they have some of my shopping and doubtless other stuff; link it all together and a pretty complete picture of me emerges.
**And aformentioned spook agency would care why?**
The current administration makes a lot of hay out of right wing extremists. The spook agencies work for that administration. Do you need me to connect the dots?
Well Google doesn't have to be wholly owned as there is the Patriot Act and FISA amendment that allow the feds to co-opt just about any communications resource to their end. NSA is building a new storage facility in Utah rumored to have yottabytes (1 yottabyte=1,000,000,000,000,000GB) of drive space where all sorts of electronic utterances could be stored and collated. The thought of my accreted internet wanderings and warblings being stored somewhere and then used for who knows what end down the line give me the willies. Plenty of times and places where my anti-federal, anti-authority, well-armed, somewhat trained perspectives and predilections would have lead to a gulag or worse.
**Yeah, they'll get to you as soon as they roll up the muslim army majors who just happen to be dialoging with AQ affilitated imams about jihad.**
Ah, I see. I'm 'sposed to be comforted by their incompetence and misallocation of resources. Got it.
I say all this as a reaction to some of the discussion occurring currently and as preface to this CATO piece. Said piece has a lot of links to Electronic Frontier, Wired, and other sources that are will worth exploring. I fret for a country that has yottabytes of data about their citizens stored and I fear the day looms when a politician will put said data to a mass, malign use.
**Please cite the source where the yottabytes will be used to document our collective warblings.**
Google "NSA 64 kilowatt facility in Utah" and all sorts of stuff will come up. The NSA, alas, isn't in the habit of publicly cataloging what they plan to do with all those trillions of gigabytes. I drive twice a day past an array of antennas pointed at DC; I've backpacked past it several times and there are all sorts of dire signs about what would happen if you hopped the fence near the antenna farm. No doubt the facility only intercepts sigint off of nasty people. Then there's the feature story I wrote about an acquaintance with some hard corp military creds. Emailed him a proof; he pulled me aside and assured me some of the terms mentioned in that proof attracted the attention of a supercomputer somewhere or the other and made it clear he didn't want it to happen again. Think there is plenty of evidence out there that much of our communications structure was designed in a manner that allows perusal of gigagobs of data; doesn't take much imagination to wonder what happens from there.
But hey, they are from the government and are here to help. No doubt I should cease my ruminations and find a public teat to suckle on or something.
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Perhaps here, perhaps now. It certainly not the case in Russia, China, and many other places. Are you of the opinion it could never happen here?
**It could happen anywhere, including here. Thankfully, we are far away from any real threat of it happening here anytime soon. Let me know when Glen Beck gets frogmatched off to the gulag.**
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The current administration makes a lot of hay out of right wing extremists. The spook agencies work for that administration. Do you need me to connect the dots?
**You're going to need a lot more dots to bridge that gap between those two data points. As much as Barry and Rahm would love to do something to quiet the critics, us individuals on the interwebs can say what we will, short of violating an actual law. The CIA, NSA or other such entity can't arrest us. KSM is getting a lovely show trial with full discovery of all sorts of vital national security secrets to be burned, with ACLU types chomping at the bit to spin legalistics webs around the federal prosecution.
With the terrorists that butchered 3000 of us on one morning getting the full measure of protection usually afforded to shoplifters, I'm not going to worry about how the new Stasi will be coming for me anytime soon.**
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Ah, I see. I'm 'sposed to be comforted by their incompetence and misallocation of resources. Got it.
**Well, unless you think Maj. Hasan was missed because the N-VA. JTTF was too busy parsing through your posts on global warming, yes.**
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TITLE 50 > CHAPTER 36 > SUBCHAPTER I § 1809. Criminal sanctions
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
(b) Defense
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.
TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1801
(a) “Foreign power” means—
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.
(b) “Agent of a foreign power” means—
(1) any person other than a United States person, who—
(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section;
(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person’s presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; or
(C) engages in international terrorism or activities in preparation therefore; or
(2) any person who—
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).
(c) “International terrorism” means activities that—
(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;
(2) appear to be intended—
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by assassination or kidnapping; and
(3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.
(d) “Sabotage” means activities that involve a violation of chapter 105 of title 18, or that would involve such a violation if committed against the United States.
(e) “Foreign intelligence information” means—
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to—
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
(f) “Electronic surveillance” means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
(g) “Attorney General” means the Attorney General of the United States (or Acting Attorney General), the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security under section 507A of title 28.
(h) “Minimization procedures”, with respect to electronic surveillance, means—
(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;
(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.
(i) “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.
(j) “United States”, when used in a geographic sense, means all areas under the territorial sovereignty of the United States and the Trust Territory of the Pacific Islands.
(k) “Aggrieved person” means a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.
(l) “Wire communication” means any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.
(m) “Person” means any individual, including any officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power.
(n) “Contents”, when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.
(o) “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and any territory or possession of the United States.
_____________________________________________________________________________________
But hey, they are from the government and are here to help. No doubt I should cease my ruminations and find a public teat to suckle on or something.
**Suckle on whatever you wish. It's a free country. :-D **
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**It could happen anywhere, including here. Thankfully, we are far away from any real threat of it happening here anytime soon. Let me know when Glen Beck gets frogmatched off to the gulag.**
It won't start with someone high profile, it'll start with small fry few will get worked up about. Say someone like Calvary Arms, which I think is closing in on 700 days since they were raided and a mess of their stuff was marched off with.
**You're going to need a lot more dots to bridge that gap between those two data points. As much as Barry and Rahm would love to do something to quiet the critics, us individuals on the interwebs can say what we will, short of violating an actual law. The CIA, NSA or other such entity can't arrest us. KSM is getting a lovely show trial with full discovery of all sorts of vital national security secrets to be burned, with ACLU types chomping at the bit to spin legalistics webs around the federal prosecution.
With the terrorists that butchered 3000 of us on one morning getting the full measure of protection usually afforded to shoplifters, I'm not going to worry about how the new Stasi will be coming for me anytime soon.**
I'm not particularly worried about it now, but you are missing the point. The kind of storage capacities they are building now will allow them to store materials that can be misinterpreted and misapplied at some point in the future. If down the line the sweetness and light fascists firmly grasp the reins of power I'd be little surprised if they started combing landfills to see if recyclable materials and a bill with your name on it ended up in the same trash bag and then fine you for that failure to recycle. Though not quite that stark, those sort of nanny state stories are already emerging in the UK. I am already accused by some of being a rabid right winger because of the things I say (I ought to introduce 'em to you, GM, 'cause it'd be fun to watch their heads explode upon learning there are people worse than me); it doesn't take a lot of imagination to worry about today's words ending up in tomorrow's show trials because that exact thing has happened before in times and places where it was much more difficult to produce utterances that are easy to find today.
Ah, I see. I'm 'sposed to be comforted by their incompetence and misallocation of resources. Got it.
**Well, unless you think Maj. Hasan was missed because the N-VA. JTTF was too busy parsing through your posts on global warming, yes.**
Don't quite have ego enough to embrace that statement, though the folly and willful ignorance that consistently emerges when the history of things military and intelligence related are written does leave me wondering what sort of stupidity and counterproductive behavior will emerge down the line. Think these sorts of concerns also occurred to the framers of the constitutions, which is why they strove to create a limited government. Alas, I'm not sure the terms "limited" and "yottabyte" should appear in the same sentence, much less in the same country.
TITLE 50 > CHAPTER 36 > SUBCHAPTER I § 1809. Criminal sanctions
(a) Prohibited activities . . . et al.
Jeepers, guess all them antennas I pass know better than to pick up my signal when I'm making smoochy noises at my wife on the cell phone during the ride home.
And on that note I guess I'll wander off and talk to her about that whole "suckle" thing you suggested. . . . :-D
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The name Vincent Foster ring a bell?
Anyone have any intel on the recent strange suicide of Michael Scott in Chicago? Apparently he was part of the BO circle and bought RE that would have been valuable had the Olympics chosen Chicago , , ,
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http://www.chicagotribune.com/news/chi-michael-scott-deathnov18,0,3218383.story
Just reading this, it doesn't seem atypical.
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http://www.wired.com/threatlevel/2009/09/nsa-email/
NSA-Intercepted E-Mails Helped Convict Would-Be Bombers
By Kim Zetter September 8, 2009 | 6:26 pm | Categories: Surveillance
The three men convicted in the United Kingdom on Monday of a plot to bomb several transcontinental flights were prosecuted in part using crucial e-mail correspondences intercepted by the U.S. National Security Agency, according to Britain’s Channel 4.
The e-mails, several of which have been reprinted by the BBC and other publications, contained coded messages, according to prosecutors. They were intercepted by the NSA in 2006 but were not included in evidence introduced in a first trial against the three last year.
**HMMMMMMMMMMMMMMM**
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Wow, and I bet they zeroed in and only intercepted the messages of just these bad guys, and of the mountain of hay they likely sorted through to find these needles they only archived for three year these specific the emails of just these people. . . .
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And you've got a better method you'd wish to be used? I'd love to hear it.
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Re the Michael Scott suicide: I saw a report that he was right-handed. With the bullet entry being to the left side of the head, that might be one of those "loose ends" they are looking to wrap up , , , besides the implications of his RE purchases , , ,
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Can you show me the source docs? People TEND to shoot themselves with their dominant hand, however that alone is not evidence of homicide.
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No I don't have a better method, though it annoys me to be told someone is dishing up tasty omelets while being assured no eggs were broken in the process. You can't have it both ways by posting all the constraints intelligence agencies are supposedly operating under and then bragging on results that clearly had to involve a lot of sifting before archiving the data for several years.
I can deal with the statement "yes your email is being read, suck it up for security reasons" better than I can deal with "you are paranoid, the laws police and intelligence agencies work under prevent the thing you fear, though check out this intelligence coup that only could have occurred if these first two statements are false, but don't whine about it unless you have a better way to do it."
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GM: Sorry, I don't have it.
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No I don't have a better method, though it annoys me to be told someone is dishing up tasty omelets while being assured no eggs were broken in the process. You can't have it both ways by posting all the constraints intelligence agencies are supposedly operating under and then bragging on results that clearly had to involve a lot of sifting before archiving the data for several years.
**What are the 4th amendment protections enjoyed by British nationals emailing Pakistanis?**
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Crafty,
Without seeing all the reports, and especially seeing all the crime scene photos, it's impossible to say that it's not a suicide unless the GSW was positioned in such a manner as to make it impossible that it was self inflicted. A contact GSW looks the same, no matter if it was self inflicted or done by someone else. Now if it wasn't a contact/close range GSW, then you have something....
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I gather the issue is that most rightys don't shoot themselves in the left side of the head, but again I have no supporting URL.
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No I don't have a better method, though it annoys me to be told someone is dishing up tasty omelets while being assured no eggs were broken in the process. You can't have it both ways by posting all the constraints intelligence agencies are supposedly operating under and then bragging on results that clearly had to involve a lot of sifting before archiving the data for several years.
**What are the 4th amendment protections enjoyed by British nationals emailing Pakistanis?**
If you only make omelets with eggs that have double yolks you have to sort through and examine a lot of single yolk eggs to get there. The NSA doesn't disclose its methodology, but a lot of the pipes that route data flow through the US, are pirated through the US, and or contains traffic originating from US citizens. I can't think of a way to sort through all those numerous 1s and 0s seeking double yolks without peering through single yolk data, nor can I imagine that, once an association is made, that potentially related material isn't archived in case it proves of value later. Claiming otherwise is tantamount to believing you can run a vacuum cleaner on the beach and only pick up targeted grains of sand.
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So the answer is to scrap the NSA?
http://www.nolo.com/legal-encyclopedia/article-29610.html
A nice primer on the topic of privacy and email.
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Nah, I think they should be forced to wrestle members of Code Pink in a vat full of lime jello, sardines, buttermilk, and tomato paste. Work for you?
And are you ceding that the NSA peruses American originating sigint? Or are we talking about disbanding the NSA for things they haven't done?
I've got an uncle (second cousin, actually) who was a Wisco politician who palled around w/ Proxmire and at one point was considering a run from governor. He use to argue with me about my Libertarian ways, claiming that you needed to work within a party structure to achieve your ends, doing a lot of compromising along the way. I replied that there was a long, honorable history of citizens fighting losing battles in defense of unadulterated liberty and, in losing, making sure those who play fast and loose with the nation's founding principles understand their shenanigans are understood and being monitored.
I suffer no illusion that my mewlings will cause the NSA to change its course, and here and now the benefit cost analysis perhaps favors the status quo. It's my hope, however, that defining the issues to small audiences in my inimitable fashion will help to ensure I'm not the only one monitoring these concerns.
Steeling myself for the next stark question. . . .
Edited to add: Off to KY in the a.m. where I'm second in command and cook for an expedition where the leader just came down w/ H1N1. Have a bunch of balls in the air most of the week so I'm not sure when I'll be back to the fray.
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Nah, I think they should be forced to wrestle members of Code Pink in a vat full of lime jello, sardines, buttermilk, and tomato paste. Work for you?
And are you ceding that the NSA peruses American originating sigint? Or are we talking about disbanding the NSA for things they haven't done?
**Given that neither one of us get to wander through the bowels of Ft. Meade and that the intertubes don't have clearly demarcated borders, it's not possible to know what has happened and hasn't. Yes? Although it's my understanding is that friendly foreign intel agencies do sift through US domestic sigint and tip off US law enforcement on the federal level when they spot something worth investigating. What are you going to do to stop GCHQ from reading your global warming posts?**
I've got an uncle (second cousin, actually) who was a Wisco politician who palled around w/ Proxmire and at one point was considering a run from governor. He use to argue with me about my Libertarian ways, claiming that you needed to work within a party structure to achieve your ends, doing a lot of compromising along the way. I replied that there was a long, honorable history of citizens fighting losing battles in defense of unadulterated liberty and, in losing, making sure those who play fast and loose with the nation's founding principles understand their shenanigans are understood and being monitored.
**Ah yes, the Libertarians, changing the world, one losing candidate at a time.** :-D
I suffer no illusion that my mewlings will cause the NSA to change its course, and here and now the benefit cost analysis perhaps favors the status quo. It's my hope, however, that defining the issues to small audiences in my inimitable fashion will help to ensure I'm not the only one monitoring these concerns.
Steeling myself for the next stark question. . . .
Edited to add: Off to KY in the a.m. where I'm second in command and cook for an expedition where the leader just came down w/ H1N1. Have a bunch of balls in the air most of the week so I'm not sure when I'll be back to the fray.
Be careful when in a part of the country where "Deliverance" is in the romantic-comedy sections of the video stores.
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**Help ! Help ! I'm being oppressed !"**
http://www.telegraph.co.uk/news/worldnews/northamerica/usa/6529436/British-spies-help-prevent-al-Qaeda-inspired-attack-on-New-York-subway.html
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http://www.telegraph.co.uk/news/uknews/6533021/British-intelligence-cracks-trans-Atlantic-terrorist-network.html
They are reticent on how Zazi was identified but admit it was through an “intercepted communication."
After Vinas was detained, a number of arrests followed in Belgium in December and in April this year Greater Manchester Police arrested 12 Pakistani students after GCHQ intercepted emails about girls and cars that were allegedly code for a planned attack.
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I get the impression from the first of your two posts that
a) they were specifically watching his particular email, and
b) the email communication was international.
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ENSIGN, MURKOWSKI INTRODUCE BILL TO SPLIT NINTH CIRCUIT
Court’s Enormous Size, Inability to Handle Caseload Top Concerns
February 8, 2007
Washington, D.C. – Senators John Ensign (NV) and Lisa Murkowski (AK) introduced legislation today to split the Ninth Circuit Court of Appeals, the largest court in the country, because it is overburdened by an unmanageable caseload. Under this bill, Nevada, along with Alaska, Arizona, Idaho, Oregon, Montana and Washington, would be part of a new Twelfth Circuit.
“The sheer size of the Ninth Circuit makes its caseload simply unmanageable,” said Senator Ted Stevens, an original co-sponsor of the legislation. “This inevitably results in delays processing cases, and it also prevents the Court from dealing with unique problems in Alaska, Hawaii, and other small states. This legislation will remedy the Ninth Circuit’s limitations by creating two smaller, more efficient Courts. Separate courts will serve the people of each region better and help maintain consistency in caselaw.”
We'll see if it works this time. Something that is long overdue since the rapidly growing "rural" states are getting really tired of this Idealogical, rather than legal court.
OOps, sory looked at the date too late. Delete if you want.
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I get the impression from the first of your two posts that
a) they were specifically watching his particular email, and
b) the email communication was international.
It seems so.
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EXCLUSIVE: FTC Illegally Published Elderly Couple's Financial Information
December 10, 2009 1:54 PM by S.M. Oliva (Archive)
The Federal Trade Commission illegally published the private financial data of William H. Isely, the 84-year-old target of a recently dismissed FTC complaint, on the agency's website (www.ftc.gov) sometime in the past few days. Isely submitted the confidential information to the FTC as part of an application to recover over $130,000 in attorney fees, expenses, and lost business arising from the agency's malicious prosecution.
FTC employees posted Isely's entire application for attorney fees without redacting more than eighty pages of confidential information detailing the finances of Isely and his wife, who was not a defendant in the case. The FTC published the Iselys' social security numbers, bank account numbers, credit card numbers, and federal income tax returns for the past five years, among other items.* FTC rules required the Iselys to provide this information as a precondition to receive an award of attorney fees due to the Commission's wrongdoing; the FTC will not compensate wrongfully-prosecuted defendants if their net worth exceeds a certain value.
The illegal publication was discovered late Wednesday afternoon. The FTC and Isely's attorney were notified about 4:45 p.m. yesterday, but the document was not removed from www.ftc.gov until approximately 9:45 a.m. this morning - seventeen hours later. It's unknown exactly how long the document was publicly available. The fee application was dated December 1 and marked-as-received by the FTC the next day. It's likely the document had been on the website since at least Monday, December 7.
FTC Secretary Donald S. Clark is responsible for posting the fee application to the agency's website. In a telephone interview, Clark blamed Isely's attorney, Matthew Van Horn, for failing to label his fee application as "confidential," and not requesting permission to file separate public and non-public versions. Clark declined to comment on whether the FTC broke any laws.
However, 5 U.S.C. § 552a expressly prohibits a government agency from disclosing records containing an individual's financial transactions, name, or "identifying number," among other items. Government employees who "willfully" disclose confidential records are subject to misdemeanor charges and a maximum fine of five thousand dollars.
And while FTC rules may specify a procedure for separately filing non-public documents, those rules do not govern whether and how Clark's office publishes documents at www.ftc.gov. Here, the fee application was apparently filed by Van Horn in paper form and then converted by Clark's office into an electronic PDF that was posted to the website. Although a quick review of the fee application revealed the existence of clearly private information, nobody in Clark's office either caught this or thought it might be a problem.
Not surprisingly, the FTC does not accept such excuses at face value when regulating private businesses. For example, in February 2009, CVS Caremark settled FTC charges that the company "failed to take reasonable and appropriate security measures to protect the sensitive financial and medical information of its customers and employees." The FTC alleged that CVS pharmacies "discarded materials containing personal information...in unsecured, publicly-accessible trash dumpsters on numerous occasions." The company was cited for both failing to adopt adequate privacy policies and failing to train employees on how to handle sensitive information. (In addition to the FTC settlement, CVS also paid a $2.25 million fine to the Department of Health and Human Services.)
As the CVS case demonstrates, the FTC views itself as the nation's primary defender of "consumer privacy." Just this past Monday, FTC Chairman Jon Leibowitz convened the first in a series of "exploring privacy" roundtables. Leibowitz has previously said, in regard to businesses that collect consumer information for advertising purposes, "If we see problems...the commission won't hesitate to bring cases, or even break thumbs."
Unlike CVS or an online advertiser, however, the FTC didn't mishandle data obtained from customers; it exposed the personal finances of a man who recently defeated the FTC before its own administrative law judge. As reported on Mises.org last month, the FTC falsely accused Isely, of running a website, www.agaricus.net, that supposedly contained false and misleading statements related to the health benefits of certain dietary supplements. The case is part of a larger FTC campaign to censor the Internet by outlawing personal testimonials and other statements regarding the medicinal use of natural products like herbs and mushrooms.
Isely was not the owner or operator of the website in question, but FTC prosecutor Barbara Bolton and her investigator, Michael Liggins, deliberately ignored evidence that another individual, a non-U.S. resident outside the FTC's jurisdiction, was the actual owner.
D. Michael Chappell, the FTC's chief administrative law judge, filed an initial decision on September 16 dismissing the complaint against Isely. On Monday, Secretary Clark filed notice that there would be no appeal of Chappell's decision, which is now the FTC's final decision.
In his application to recover attorney fees and expenses, Isely said he "was taken advantage of" by FTC staff, who "used the power and resources of the Federal Trade Commission in attempt to coerce [him] to admitting liability." He described how his "business was destroyed" by the FTC's false charges. Isely, whose reported net worth is less than fifty thousand dollars, seeks $89,330.19 to pay his legal bill to Van Horn, $6,000.06 for travel and related expenses, and $36,902.11 for "loss of business income" - a total of $132,232.36.
If approved by Judge Chappell, taxpayers would be on the hook for the full amount; neither Barbara Bolton, the FTC attorney who prosecuted the case, nor any of her superiors at the Commission can be held personally liable for their misconduct. Additionally, it is unknown how much Bolton and her staff spent to prosecute Isely; the FTC has illegally refused to answer a Freedom of Information Act request filed more than two months ago seeking disclosure of the agency's expenditures in this case.
* Isely and his wife disclosed their home address; telephone numbers; social security numbers; the names, locations, and numbers of their safe deposit boxes; cash-on-hand; the names, locations, and full numbers of their personal and business bank accounts; information regarding a life insurance policy; a list of all personal property; the identity, registration, and assessed value of their personal vehicles; the location and assessed value of real property solely in Mrs. Isely's name; the names, full account numbers, and current balances of several credit cards; a list of any taxes owed; a list of federal tax returns, and expected refunds, for the past three years; a list of all asset transfers completed within the past three years; and complete bank account and credit card statements. Isely also provided his complete federal tax returns for the past five years in support of his request for reimbursement of lost business income.
http://blog.mises.org/archives/011216.asp
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The Climategate plot thickens:
DOE sends a “litigation hold notice” regarding CRU to employees – asking to “preserve documents”
It appears bigger things are brewing related to CRU’s Climategate.
WUWT commenter J.C. writes in comments:
I work at the Savannah River Site (SRS) in South Carolina. I’ve been following the Climategate scandal since its inception. The first time many of my coworkers had heard of the situation was when I asked them about it.
Well, well, well.
Look what was waiting in every single email Inbox on Monday morning:
______________________________________________
“December 14, 2009
DOE Litigation Hold Notice
DOE-SR has received a “Litigation Hold Notice” from the U.S. Department of Energy (DOE) General Council and the DOE Office of Inspector General regarding the Climate Research Unit at the University of East Anglia in England. Accordingly, they are requesting that SRNS, SRR and other Site contractors locate and preserve all documents, records, data, correspondence, notes, and other materials, whether official or unofficial, original or duplicative, drafts or final versions, partial or complete that may relate to the global warming, including, but not limited to, the contract files, any related correspondence files, and any records, including emails or other correspondence, notes, documents, or other material related to this contract, regardless of its location or medium on which it is stored. In other words, please preserve any and all documents relevant to “global warming, the Climate Research Unit at he University of East Anglia In England, and/or climate change science.”
As a reminder, this Litigation Hold preservation obligation supersedes any existing statutory or regulatory document retention period or destructive schedule. The determination of what information may be potentially relevant is based upon content and substance and generally does not depend on the type of medium on which the information exists. The information requested may exist in various forms, including paper records, hand-written notes, telephone log entries, email, and other electronic communication (including voicemail), word processing documents (including drafts, spreadsheets, databases, and calendars), telephone logs, electronic address books, PDAs (like Palm Pilots and Blackberries), internet usage files, systems manuals, and network access information in their original format. All ESI should be preserved in its originally-created, or “native” format, along with related metadata. Relevant backup tapes and all indexes for those tapes should also be preserved. Further, information that is reasonably accessible must nonetheless be preserved, because such sources will, at the very least, need to be identified and, under compelling circumstances, may need to be produced.
If you have any doubts as to whether specific information is responsive, err on the side of preserving that information.
Any employee who has information covered by this Litigation Hold is requested to contact Madeline Screven, Paralegal, SRNS Office of General Council, 5-4634, for additional instructions.
Michael L. Wamsted
Associate General Council”
http://wattsupwiththat.com/2009/12/14/doe-sends-a-litigation-hold-notice-regarding-cru-to-employees-asking-to-preserve-documents/
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The plot thickens! The game is afoot Watson!
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Honest Services Fraud: Your Third Felony Today?
Harvey Silverglate • December 14, 2009 9:59 am
Last week, the Supreme Court heard two cases challenging the scope of so-called “honest services” fraud, a 28-word provision tacked onto the generic federal mail-and-wire fraud statute that makes it illegal to “deprive another of the intangible right of honest services.”
If you’re asking what this statute means, you’re in august company: Justice Antonin Scalia asked the very same question during oral argument in Black v. U.S. (see pg. 45 of the transcript [PDF]). All told, eight of the nine justices expressed skepticism about the “honest services” law, focusing on the vagueness that prosecutors have exploited but defendants and civil libertarians have loathed.
Most pointedly, perhaps, was Justice Stephen Breyer’s observation that almost any professional could inadvertently violate this statute. “[T]here are 150 million workers in the United States. I think possibly 140 [million] of them would flunk your test,” he told Deputy Solicitor General Michael R. Dreeben, who was attempting to posit arguable limiting principles.
Breyer’s observation goes to the heart of the phenomenon about which I’ve written in my book, Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009). Because of the vague terminology increasingly used in the ever-expanding federal criminal code, combined with the erosion of intent as a requirement for conduct to be considered prosecutable, the average citizen can easily commit several felonies in any given day. (Interviewers have jostled me for what they deemed my wild overstatement, while I’ve tried to assure them that their own daily conduct probably produces three arguable felonies. Now I have one justice—and perhaps several more—on my side.)
“Honest services” fraud is an instructive example of this trend, but the federal law books are cluttered with countless others. Creative interpretations of the Computer Fraud and Abuse Act, obstruction of justice statutes, and controversial Patriot Act provisions—to name a few—have turned honest citizens into federal defendants and even convicted felons.
What about “due process of law” guarantees provided under the Fifth Amendment and its ancillary “void for vagueness” doctrine, which protects citizens from being prosecuted with unclear laws that they cannot be expected to understand? This salutary doctrine was famously invoked during the Civil Rights Era, when state convictions were struck down because malleable statutes were selectively enforced against protesters. The Supreme Court recognized, in one case, that prohibiting protests “near” a courthouse gives government officials too much latitude in determining what is, and what is not, legal. Many such state convictions were voided by federal courts.
But in the aftermath of the modern-day explosion of federal statutes and regulations covering almost every area of American life, these doctrines have not been applied with equal rigor. In a system that operates like this, more and more innocent conduct gets swept into the category of arguable crime—not by clear legislation, not by careful and honest court examination, but by assumption and acquiescence.
This dangerous trend is exacerbated by the “win at all costs” mentality of the Justice Department. Colleagues are turned into stool pigeons as prosecutors offer deals for testimony that often bears little resemblance to the truth. (As my colleague Alan Dershowitz colorfully but all-too-accurately puts it, “prosecutors can pressure witnesses not only to sing, but also to compose.”)
Faced with the prospect of a long prison sentence, enormous costs of defense counsel, and frequent threats to indict family members who are thus held hostage, defendants often choose, to parody an old cigarette commercial, to switch rather than fight.
That’s a big reason why, in 2006, 96% of all federal convictions were a result of guilty or no-contest pleas, according to Justice Department statistics. When these cases end in plea agreements, scant scrutiny is applied to the sometimes questionable prosecutorial tactics—tactics, incidentally, that are rarely understood, much less questioned, by a largely pliant news media that feeds on sensational prosecution claims.
It’s important to keep in mind, too, that this problem is not the creation of any one political party. It’s a truly bipartisan beast, expanding rapidly since the mid-1980s. That’s when I, a criminal defense and civil liberties trial lawyer since 1967, noticed that more and more of my clients in federal criminal cases were being prosecuted for actions that neither I nor they instinctively viewed as criminal. In a few instances, their conduct was arguably borderline or otherwise ethically dubious, but it lacked the clear contours that would violate statutes and regulations with sufficient clarity to qualify for criminal prosecution.
To my surprise (and chagrin), this trend has only increased with each successive changing of the Washington political guard. From Reagan to Obama, Congress has continued to pass indecipherable legislation, and federal prosecutors have continued to twist statutes in order to criminalize a broad array of conduct—including, quite often, conduct that is assuredly not in violation of state law but which suddenly becomes federal fraud.
The bipartisan nature of this problem is at once disheartening and encouraging. Disheartening, in a sense, because it cannot be remedied by voting one party out of power. It seems to be rooted in the culture at Main Justice, a culture that persists from one attorney general to the next.
In another sense, though, the nonpartisan nature holds promise. Recognition of this problem has brought together seemingly disparate groups to collectively seek change. Adam Liptak, Supreme Court reporter for The New York Times, picked up on this in his November 23 column, “Right and Left Join Forces on Criminal Justice.”
In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.
But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.
Liptak noted, later in the column, that an official from the conservative Heritage Foundation offered him a copy of Three Felonies a Day. (In that column, Liptak referred to me as a “left-wing civil liberties lawyer,” and that was somewhat accurate, although I see myself as a liberal with strong libertarian leanings. My co-founding The Foundation for Individual Rights in Education (FIRE) demonstrates, for example, my near-absolutist support for free speech regardless of politics or point-of-view.)
The “honest services” hearings and the emerging consensus on reforming these criminal justice issues were also highlighted by Tony Mauro of the National Law Journal. In his December 7th column, Mauro pointed out that former Attorney General Edwin Meese III—whom I criticized vehemently when he headed the Reagan Justice Department—welcomed me at a recent speaking event. We now see eye-to-eye on “overcriminalization” of the law, which covers both the expanded reach of federal criminal law and the vagueness of the statutes.
Over the coming week, I will explore the extent of the threat to liberty represented by vague federal laws and the reasons behind this nonpartisan unification against them.
http://volokh.com/2009/12/14/honest-services-fraud-your-third-felony-today/
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Keeping the Nation Safe, or Making Citizens Vulnerable? The Dangers of Vagueness in Anti-terrorism Laws
Harvey Silverglate • December 15, 2009 8:32 am
Second installment of a five-part series on Silverglate’s book, Three Felonies a Day: How the Feds Target the Innocent.
Sami Omar al-Hussayen was a doctoral candidate at the University of Idaho when he was arrested in February 2003. Federal prosecutors alleged that al-Hussayen, a Saudi citizen studying computer science in the United States, provided “material support” and rendered “expert advice or assistance” to terrorists. News reports, on the word of anonymous “federal criminal justice” sources, linked him to Osama bin Laden.
What was his crime? Al-Hussayen used his computer skills to run a number of websites for a Muslim charity dedicated to traditional religious teaching. But if a web-surfer burrowed into links from al-Hussayen’s site, he or she would eventually come across links containing violent anti-American messages. This, prosecutors charged (PDF), was how al-Hussayen aided global terrorism.
District Judge Edward J. Lodge, for one, played the case right down the middle. In his jury instructions, Lodge explained to twelve stalwart Idahoans that the First Amendment protects advocacy, even advocacy to break the law, “unless the speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Brandenburg v. Ohio, 395 U.S. 444, 1969) Of course, it was doubtful that al-Hussayen was even advocating lawlessness, much less violence, but for the sake of argument, let’s assume that there was such a subtext to his website maintenance. Even then, the prosecution was highly dubious.
With Judge Lodge’s clear line separating lawful political speech from unlawful incitement to imminent violence, the jury took little time in acquitting the grad student of the terrorism-related charges. Liberty, which seemed to matter less and less at Main Justice in Washington, remained alive and well in Idaho. (This was due not only to a law-abiding judge presiding over the trial, but also to the fact that the defendant was able to hire and pay competent defense counsel.)
Nonetheless, this case, reportedly the first prosecution brought under the USA Patriot Act’s expanded material support provision, did little to clarify the “expert advice or assistance” aspect of the federal terrorism laws. There are, in fact, three separate federal statutes that criminalize such material support, and Georgetown Law Professor David Cole provides an interesting analysis of these overlapping provisions, here. For present purposes, material support will refer to 18 U.S.C. 2339B.
Yet the mere fact that there are three separate provisions for essentially the same violation—and all are characterized by vague and dangerously subjective wording—illustrates the general opacity of the federal criminal code. (And, rest assured, incitement to violence could likely be squeezed into yet another statute by a creative federal prosecutor). With similarly vague statutes criminalizing a wide array of seemingly benign activity, the average citizen, even without touching the apparently volatile arena of Muslim charities, can commit several arguable felonies in the course of a day. Thus, the thesis and title of my book, Three Felonies a Day: How the Feds Target the Innocent. (I provided an introduction to the topic on Monday.)
To be sure, there are countless federal crimes that an average citizen can inadvertently violate. But I’d like to focus today on the vague laws governing terrorism and terrorist organizations. These laws, and those prosecuted under them, provide a timely window into how loosely-worded statutes enable the government to prosecute virtually anyone.
Consider, first, the semantic power of “terrorism.”
The Animal Enterprise Protection Act, passed by Congress in 1992, outlawed the “physical disruption” of an animal farm or testing facility. But with animal-rights activists continually ramping up their protests, medical facilities and some researchers looked to toughen criminal sanctions. In November 2006, Congress responded with the Animal Enterprise Terrorism Act, which expanded the scope of criminal sanctions for any activist who “intentionally damages or causes the loss of any real or personal property…used by an animal enterprise.”
How does one define “real or personal property?” Is it limited to monetary losses, or can this include the loss of future profits? The statutory language is unclear, and case law indicates that loss of profits and business goodwill can be considered property damage (See, e.g., Radiation Sterilizers v. United States, E.D. Wash., 1994).
It’s an important distinction for animal-rights activists; after all, threatening future profit is arguably the point of lawful protest (expose alleged wrongdoing and, in turn, encourage a boycott by others). Nonetheless, the law threatens to impede such political expression, not only through actual prosecution, but also through the “chilling effect” of those who severely restrain themselves in order to avoid a possible federal criminal indictment—because they don’t know their legal obligations until it’s too late.
A similar legal ambiguity led to the court challenge of the aforesaid “material support” language. In a case that will be argued before the Supreme Court this coming term (Holder v. Humanitarian Law Project), six groups and two individuals are seeking clarity on whether they are permitted to assist in the nonviolent, legal activities of groups classified by the U.S. government as terrorist.
The Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam are considered terrorist organizations by the U.S. government, although plaintiffs insist that both groups engage in a broad range of lawful activity. Due to the vague terminology in Patriot Act provisions (“service,” “training,” or “expert advice or assistance,” to name a few), plaintiffs claim that even innocuous conduct such as “teach[ing] such an organization human rights advocacy or English” could be considered material support. With indictments like al-Hussayen’s showing the elasticity of “expert advice” in the government’s lexicon, there’s little wonder that these groups are seeking guidance.
The intensity of the friend-of-the-court (amicus) briefs is an indication, perhaps, of the far-reaching fear instilled by such statutory language. Wrote the ACLU (PDF):
Amici, like plaintiffs, are left hopelessly guessing – at the risk of grave penalty – whether their advocacy for peace or human rights, their engagement in or facilitation of peace-making dialogue, or the expressive components of their humanitarian aid work crosses the line from constitutionally protected to criminally proscribed.
The bi-partisan nature of the problem—demonstrated by the fact that what is now the “Holder” case began as Humanitarian Law Project v. Reno and then was re-named through every administration to the present day—explains the need for a non-partisan response. Starting with Clinton Attorney General Janet Reno, this case has been litigated through the Ashcroft/Gonzales/Mukasey years of the Bush administration, and it continues with current AG Eric Holder. Plus ça change, as the French say, plus c’est la même chose.
When these lines are left vague, the feds are given strong tools to target extremists. But they’re also free to target any other victim of their choosing, which they seem to do with disturbing regularity. And while the current political climate has put the issue of laws related to terrorism in the spotlight, similarly vague statutes exist throughout the federal criminal code, exposing all of civil society. It’s time to recognize that the bell tolls for us all.
http://volokh.com/2009/12/15/vagueness-in-anti-terrorism-laws/
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Protecting Investors or Prosecuting Innocents? The Dangers of Vagueness in Financial Fraud Laws
Harvey Silverglate • December 16, 2009 9:22 am
Third installment in a five-part series on Silverglate’s book, Three Felonies a Day: How the Feds Target the Innocent.
“As a result of a burgeoning number of fraud investigations and prosecutions, I have become convinced that a concerted interagency effort is needed. We want to bring this additional firepower to bear on behalf of investors who might otherwise lose their confidence in the integrity of these markets.”
The Financial Fraud Enforcement Task Force, an interagency effort to investigate and prosecute those responsible for the current economic crisis, was established via executive order on November 17. But the above announcement was made twenty years prior. On January 31, 1989, then-Attorney General Dick Thornburgh touted the creation of a coordinated task force to bring to heel those responsible for the Wall Street scandals du jour.
Indeed, the present response to Wall Street failures seems straight out of a time-tested Washington playbook: Ratchet up enforcement, throw the miscreants in prison, and—voila—the public’s confidence in their markets and in their government is restored.
Arrest rates for “white collar” fraud have surged in the wake of recent well-publicized financial scandals, according to data generated (PDF) from the FBI’s Uniform Crime Reports. Over a two-year period after the savings-and-loan scandal and the creation of the task force described above (1990–1992), the number of fraud arrests increased 53%; over the same period following the dot-com bust (2000–2002), arrests jumped 26%. Now, with regulatory agencies expanding their probes of alleged insider-trading violations and the Justice Department promising more convictions, a raft of indictments appears inevitable. But do these enforcement efforts reflect true criminal violations? Putting aside the long-term efficacy of such periodic orgies of prosecution, there remains the nagging question of whether the defendants are guilty of any crime.
One’s unease lies not in the seeming futility of enforcement per se, but in the very nature of the laws that regulate financial fraud. For one thing, the sheer volume of regulatory codes makes adherence to legal standards a high hurdle. When Congress was considering the Fraud Enforcement and Recovery Act earlier this year, the National Association of Criminal Defense Lawyers and the Federalist Society—organizations on opposite ends of the ideological spectrum but joined at the hip in battling unfair and excessive federal prosecutions—authored a joint letter (PDF) to the Senate Judiciary Committee, pointing out that virtually all criminal provisions then under consideration were already encompassed within the existing federal criminal code. Congress ignored this nonpartisan and eminently sensible plea, passed the legislation, and added to the Justice Department’s armamentarium of overlapping and vague criminal statutes.
More pernicious than the volume of federal laws, however, is their imprecise wording. Prosecutors are given too much latitude in pursuing perceived wrongdoers whose conduct isn’t explicitly proscribed by statutory language. In a society of laws, fair notice as to what conduct might land a citizen in prison is a vital component of due process.
This should not be confused with a plea for de-regulation, which is largely a political and not a legal debate. Nor is it a plea for leniency for those who knowingly violate clear rules, even if those rules are unwise. But providing average citizens with clarity of their legal obligations is a vital civil liberties matter having nothing to do with whether one believes in more regulation or less. Timothy Lynch, director of the Cato Institute’s Project on Criminal Justice, spells out the need for specifically defined legal boundaries in his timely treatise on modern criminal law, In the Name of Justice (to which I contributed a chapter):
There is precious little difference between a secret law and a published regulation that cannot be understood. History is filled with examples of oppressive governments that persecuted unpopular groups and innocent individuals by keeping the law’s requirements from the people.
Galleon Group hedge fund founder Raj Rajaratnam, indicted (PDF) yesterday on 11 counts of securities fraud and conspiracy, would likely fit into this “unpopular” category, especially as his unflattering, hand-cuffed image from an October 16 early-morning “perp walk” continues to grace broadsheets and blogs. Rajaratnam is accused of having foraged around for—and obtained—purportedly non-public information from corporate insiders. But serious questions exist as to the line between legitimate research and illegal trading, as well as the extent to which insider trading laws even cover such outsiders who seek inside information. (Unlike Rajaratnam, others involved in the case might be insiders, and their legal obligations would be considerably clearer.)
The law criminalizing insider trading, enacted with the Securities and Exchange Act of 1934, prohibits “any person, directly or indirectly,” to “use or employ, in connection with the purchase or sale of any security…any manipulative or deceptive device.” Lawmakers assumed the SEC, which the Act created, would issue regulations to flesh out the vague language and effectuate the statute’s intent. But the SEC’s regulations tend to mimic, rather than clarify, the statute’s oracular wording, and neither the SEC nor Congress has been particularly eager to spell out precisely the nature of “securities fraud” or “insider trading.”
In the 1980s, both Congress and the SEC had an opportunity to provide clarity to securities fraud law. The Insider Trading Sanctions Act of 1984 (“ITSA”) substantially increased the penalties for insider trading. The Insider Trading and Securities Fraud Enforcement Act of 1988 (“ITSFEA”) further upped the ante by providing sanctions against those who “recklessly…failed to take appropriate steps to prevent” violations by others. Remarkably, despite near-unanimous support in both chambers of Congress, neither statute did anything to define precisely what insider trading was and what kinds of “outsiders” were covered.
During the ITSFEA hearings, Chairman John Dingell of the House Committee on Energy and Commerce claimed that any definition of insider trading would provide criminals with a “roadmap for fraud.” (It appeared not to occur to him that legal clarity is actually meant to provide a roadmap for lawful conduct.) Dingell explained that his committee “did not believe that the lack of consensus over the proper delineation of an insider trading definition should impede progress on the needed enforcement reforms encompassed within this legislation.”
It is reasonable to ask the question—especially in light of the early morning arrests, perp walks, sensational trials, and gargantuan prison sentences—whether the current system for dealing with “insider trading” by corporate outsiders who pursue as much information as their research skills and personal contacts allow comports with basic notions of due process of law.
Similar due process questions arose in the case of two former Bear Stearns hedge fund managers. Prosecutors indicted (PDF) Ralph Cioffi and Matthew Tannin on securities fraud charges for, in effect, presenting an optimistic picture to investors while aware of the possibility of collapse. When Cioffi and Tannin were faced with questions as the subprime mortgage market—in which their funds were heavily invested—looked ominously shaky, they doubtless agreed with the prevailing wisdom: Sure, a total collapse could happen, but the markets could instead stabilize and suddenly present managers with a huge buying opportunity. The situation, after all, was unprecedented in modern times.
Were a fund manager to respond to questions by publicly indulging his pessimistic side— “I think our liquidity has dried up and we may be on the verge of collapse”—he surely would have caused precisely that which he was hoping to avoid: a fatal “run on the bank.” Such a statement could rightly be seen as professional malpractice, subjecting the manager to endless civil litigation by disgruntled investors who doubtless could demonstrate that, at the time, an optimistic outcome was still a distinct possibility and that the manager’s predictions of doom were a reckless self-fulfilling prophecy.
The case was yet another example of the Justice Department targeting “professionals who have engaged in seemingly routine requirements of their job,” I wrote in the Wall Street Journal when the criminal investigation commenced in April 2008. Fortunately, jurors recognized the Catch-22 in which the Bear managers found themselves and acquitted Cioffi and Tannin on November 10.
In light of the legacy of the federal government responding to market downturns with task forces and ramped up prosecutions and perp walks, former Attorney General Thornburgh’s testimony (PDF) at a July 2009 Congressional hearing on the phenomenon of “overcriminalization” was a gratifying departure from remarks past. Said Thornburgh:
Make no mistake, when individuals commit crimes they should be held responsible and punished accordingly. The line has become blurred, however, on what conduct constitutes a crime, particularly in corporate criminal cases, and this line needs to be redrawn and reclarified.
Amen!
http://volokh.com/2009/12/16/vagueness-in-financial-fraud-laws/
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How the “Independent” Fourth Estate Has Failed in its Critical Duty
Harvey Silverglate • December 17, 2009 2:56 am
Fourth installment in a five-part series on Silverglate’s book, Three Felonies a Day: How the Feds Target the Innocent.
In a discussion on WAMU Radio yesterday, host Kojo Nnamdi noted that vagueness in the federal criminal law has recently made “strange bedfellows” of the political left and right. This same “emerging consensus” was also the subject of an insightful November 23 article by Adam Liptak, The New York Times’ Supreme Court reporter.
What has occasioned this coming together? As I mentioned here on Monday, individuals and organizations of all political stripes are realizing the danger to all when prosecutors are empowered with exceedingly broad and—worse—hard-to-define federal laws. A diverse coalition of groups—including the Heritage Foundation, the Federalist Society, the Cato Institute, the National Association of Criminal Defense Lawyers, and the ACLU, among others—have been sounding a clarion call against this species of executive expansion. They have pointed out that, from webmasters to fund managers, no segment of civil society is safe.
But this phenomenon is not new. As I document in Three Felonies a Day, the proliferation of vague laws—and prosecutions under them—began in the mid-1980s. Why has widespread recognition, especially from the American public, taken so long?
For one thing, the Department of Justice has a very effective public relations machine. With every major indictment, there is a press release and, not infrequently, a press conference that major national media typically attend with bated breath. Flanked by FBI, IRS, DEA, SEC, and members of the other myriad supporting agencies, prosecutors feed reporters the government’s side of the case, often a matter of hours after a hapless defendant has been rousted out of bed and paraded in the infamous “perp walk” (much to the delight of press photographers who have been tipped off in advance). At the end of this prejudicial circus-like performance, prosecutors often refuse to answer media questions on the ironic ground that they are bound by the federal court’s rules against pre-trial publicity and, in any event, they do not want to cause the public (especially potential jurors) to prejudge the case!
But the press corps itself is ultimately responsible for the one-sided coverage of what I call “three-felonies-a-day” cases (a reference to my new book, Three Felonies a Day: How the Feds Target the Innocent). The fact is that there is an unseemly relationship between the Department of Justice and much of the news media. While in some areas the press and the DOJ have developed an appropriately adversarial, or at least skeptical relationship, by and large the DOJ plays the press corps like a fiddle.
Consider the Houston Chronicle’s slanted coverage of the arrest, indictment, and trial of former Enron President Jeffrey Skilling, convicted in May 2006 on charges of conspiracy, securities fraud and depriving the now-defunct Houston-based energy company of his “honest services.” Vitriol for Skilling was not limited to the Chronicle’s opinion pages; news articles, sports stories, and columnists vilified Skilling well before his day in court. Despite affirming his conviction, the Fifth Circuit Court of Appeals ruled that the media coverage created a community prejudice against Skilling. The three-judge panel wrote (PDF) that the Chronicle published “nearly one hundred…personal interest stories in which sympathetic individuals expressed feelings of anger and betrayal toward Enron,” and that even “the Chronicle’s ‘Pethouse Pet of the Week’ section mentioned that a pet had ‘enjoyed watching those Enron jerks being led away in handcuffs.’” (Emphasis in original) In Houston, the so-called Fourth Estate played the role of prosecutorial lapdog.
The Supreme Court decided on October 13 to review the Skilling case as part of its trio of honest services cases this term, and one of the issues on appeal is the extent to which jury prejudice affected the verdict. But, if the previous hearing on honest services is any indication, the justices will use the Skilling case to look at the broader constitutional due process question surrounding the infamously vague 28-word fraud provision. Oral argument is set for March 1.
Another public figure, disparaged in the public eye even before he was indicted (much less convicted) will be intently watching the high court’s decisions in all three honest services cases. The prosecutor’s press machine has been so effective that even mentioning his name causes some to chuckle with derision. But the case of former Illinois Governor Rod Blagojevich deserves a closer look.
Illinois U.S. Attorney Patrick Fitzgerald framed the case, from the start, as an altruistic Department of Justice mission to clean up state and local politics. At a December 9, 2009 press conference, held shortly after Blagojevich’s early-morning arrest on a variety of political corruption charges, Fitzgerald announced his most sensational allegation: The governor deprived Illinois’ electorate of his “honest services” when he sought to sell to the highest-bidder the Senate seat vacated by Barack Obama. The headlines were, predictably, nationwide, in large type above-the-fold (or the on-line equivalent).
This discovery from the wiretap and bug planted by Fitzgerald’s agents in the governor’s office and home was deemed so threatening to the public weal that the prosecutors, rather than give the plot time to play itself out and result in an outright sale-and-purchase of the Senate seat, pulled the plug and arrested Blagojevich before any deal was consummated—or so the nation was told. At the press conference, Fitzgerald informed a rapt audience of newsmen that he had to act precipitously to prevent the governor from carrying through this “most appalling conduct” that was the pinnacle of the governor’s “political corruption crime spree.”
So the prosecution is for a “conspiracy,” or plan, to sell the Senate seat, rather than for an accomplished act. Without having to show that Blagojevich actually sold the Senate seat, and with the notoriously vague federal conspiracy law, securing a conviction is much easier. In a sense, no real crime is required. Yet neither the media nor the public questioned Fitzgerald’s motives for failing to wait until the Obama seat was actually sold. (Had such a sale taken place, of course, the Senate would surely not have seated the governor’s nominee. Hence, there was no good reason for Fitzgerald to fail to wait for the completed crime—except, as I suggest, that no such sale was in fact going to take place.)
Blagojevich has some quite different perspectives on his pre-arrest political machinations, which he sets out in a remarkable, even if unbalanced and in some places downright silly, memoir published after his indictment, entitled The Governor. The former governor claims that his motive for choosing Obama’s successor had to do with getting his political enemies out of the way of his legislative agenda. If Blagojevich’s account is to be believed, Fitzgerald pulled the plug prematurely not to serve the people of Illinois, but to save his own case. Had the matter been allowed to play itself out, says the former governor, it might have become increasingly obvious that what Blagojevich was doing was perfectly legal—even if unsavory to some refined sensibilities—Chicago politics. Indeed, Blagojevich tried, without success, to obtain the full, unedited eavesdrop tapes to play at his impeachment trial, claiming they would exonerate him, but was unable to do so due to Fitzgerald’s objection. At the very least, the tapes might have portrayed conduct deemed lawful, or at least acceptable under Illinois state law.
Blagojevich’s benign (even if unrefined) political explanation is lent credence by something Fitzgerald said during the December 2008 press conference. He noted that an Ethics in Government Act was pending in Illinois, scheduled to take effect January 1, 2009 that, according to Fitzgerald, “would bar certain contributions from people doing business with the state of Illinois.” And so, explained Fitzgerald, Blagojevich and his cronies “were working feverishly to get as much money from contractors, shaking them down, pay-to-play before the end of the year.” In other words, Fitzgerald appeared to be conceding that at least some of Blagojevich’s conduct was in accordance with state law as it stood at the time. Not a single reporter, however, pointed out that this “crime spree” was apparently occurring before the new ethics laws were enacted, and that the governor’s actions therefore conformed to and were permissible under state law.
Were these “crimes” the work of an arch criminal, or merely the machinations of a master political opportunist doing what Illinois law allowed? While it is true, of course, that the honest services fraud statute enables the feds to prosecute state officials for conduct allowed under state law—this is one of the statute’s problems that the Supreme Court presumably will rule upon in the upcoming cases—it is, or should be, difficult to brand a politician as on a “political corruption crime spree” if he is scrupulously adhering to the statutes and codes duly enacted by a sovereign state legislature.
Until we have a more skeptical press corps, the public discussion of whether and how federal prosecutions on the basis of vague statutes should be reined in is going to have to be conducted without the essential participation of an educated citizenry. This Fourth Estate cheering gallery is not what Thomas Jefferson envisioned.
http://volokh.com/2009/12/17/how-the-fourth-estate-has-failed/
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World’s biggest coal company brings U.S. government to court in climate fraud
by JOHN O'SULLIVAN on FEBRUARY 17, 2010
23 COMMENTS
The world’s largest private sector coal business, the Peabody Energy Company (PEC) has filed a mammoth 240-page “Petition for Reconsideration,” a full-blown legal challenge against the U.S. Environmental Protection Agency.
The petition must be answered and covers the entire body of leaked emails from ‘Climategate’ as well as those other ‘gate’ revelations including the frauds allegedly perpetrated under such sub-headings as ‘Himalayan Glaciers,’ ‘African Agricultural Production,’ ‘Amazon Rain Forests,’ ‘Melting Mountain Ice,’ ‘Netherlands Below Sea Level’ as well as those much-publicized abuses of the peer-review literature and so called ‘gray literature.’ These powerful litigants also draw attention to the proven criminal conduct by climate scientists in refusing to honor Freedom of Information law (FOIA) requests.
Peabody is, in effect, challenging the right of the current U.S. federal government to introduce cap and trade regulations by the ‘back door.’ In this article we summarize Peabody’s legal writ.
PEC has pulled out all the stops to overturn the EPA findings ‘Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act’ made on December 7, 2009. Those findings were in turn premised on the Supreme Court decision of April 2, 2007 of Massachusetts v. EPA, 549 U.S. 497 (2007), where the court ruled that greenhouse gases are air pollutants covered by the Clean Air Act.
PEC argues inter alia that the law requires that the federal agency must articulate a “rational connection between the facts found and the choice made” as per the case of Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43 (1983).
The PEC arguments are based primarily on the release of email and other information from the University of East Anglia (“UEA”) Climatic Research Unit (“CRU”) in November of last year. Their civil action lists most of the principle scientists such as Professor Phil Jones, of the UK’s Climatic Research Unit, who recently admitted there has been no ‘statistically significant’ global warming for 15 years and agreed the Medieval Warm Period may have been just as warm, if not warmer than current global temperatures.
The petition argues the EPA must reconsider its Endangerment Finding based on all the new material from Climategate that was not available during the original EPA ‘comment period’ and which is central to the outcome that EPA reached in promulgating its Endangerment Finding.
The petition further states that the EPA failed to properly exercise its judgment as required by the Clean Air Act (“CAA”) and acted in an “arbitrary and capricious” fashion by relying almost exclusively on flawed reports of the IPCC in attributing climate change to anthropogenic greenhouse gas (“GHG”) emissions and which were influenced by political rather than scientific concerns.
Among their submissions the PEC legal team attacks the “Nice Tidy Story of Unprecedented 20th Century Warmth” using emails written while climatologists were making preparations for the Third IPCC report. Among them Keith Briffa stated that:
“I know there is pressure to present a nice tidy story as regards ‘apparent unprecedented warming in a thousand years or more in the proxy data’ but in reality the situation is not quite so simple.” [CRU email 938018124.txt (Sep. 22, 1999)]
Briffa went on to say that:
“I believe that the recent warmth was probably matched about 1000 years ago.” [CRU email 938018124.txt (Sep. 22, 1999)]
The PEC legal eagles then cite another key researcher, Ed Cook, who in a lengthy email bristles at the effort to eliminate the MWP and wrote:
“I do find the dismissal of the Medieval Warm Period as a meaningful global event to be grossly premature and probably wrong.”
[CRU email 988831541.txt (May 2, 2001)]
The PEC action criticizes the discredited IPCC reports that were not the product of a rigorous, transparent and neutral scientific process. PEC argues:
“The CRU information reveals that many of the principal scientists who authored key chapters of the IPCC scientific assessments were driven by a policy agenda that caused them to cross the line from neutral science to advocacy.”
As an example of bias, Dr. Kevin Trenberth – Senior Scientist, Head of the Climate Analysis Section at the National Center for Atmospheric Research is cited for his admission:
“I tried hard to balance the needs of the science and the IPCC, which were not always the same.”
Hide the Decline
The coal company’s lawyers argue that to hide the decline in the correlation between recent temperatures and what was showing in the proxy data, Professor Michael Mann and then Phil Jones unethically and fraudulently grafted on actual temperature data to the end of their proxy reconstructions rather than using the same proxy data as had been used throughout the reconstruction.
By this ‘trick’ they made the graphic presentations of the proxy reconstructions misleading, since the effect is to make it seem as if the proxy data shows rising 20th century warming when it doesn’t. But the real deception in the trick was in hiding what became known as the “divergence” problem.
The divergence problem is where the proxy data are contradicted by actual data, as they are for a significant period of the time when direct temperature measurements exist, the accuracy of the proxy data over the entire period of the proxy reconstruction is called into question so that the science cannot be determined to be “settled.”
In a robust attack lawyers for the PEC further assert:
“Moreover, the Information Commissioner’s Office of the United Kingdom (“U.K.”), the agency that oversees and enforces the U.K.’s freedom of information laws, after investigation, recently concluded that CRU broke those laws in refusing to respond to information requests.”
The petition concludes that:
“In sum, given the seriousness of the flaws that the CRU material and other information reveal in the development of the IPCC reports, the Agency must reexamine the Endangerment Finding. The Agency can no longer have confidence that those reports present a fair, unbiased and accurate assessment of climate science.”
Moreover, PEC is demanding that the EPA shall convene a full evidentiary hearing as a part of such reconsideration. If this element of the petition were granted it is highly probable that the weight of the new evidence now freely available since Climategate would expose the criminal and fraudulent component within the science of man-made global warming, and would likely succeed in having all the EPA’s findings on carbon dioxide invalidated.
Thereby, from accomplishing their civil task Peabody will lend further weight to the likelihood of criminal charges being brought against those individuals implicated in international fraud on the largest scale ever known.
Possibly related posts:
Two U.S. Congressmen go after EPA on reliance on UN’s climate panel
Senate seeks to can EPA’s “CO2 is a pollutant” regulation
Sign Lord Monckton’s petition if you haven’t yet
How to destroy your reputation in three easy steps
Save yourself! Andrew Weaver looks for a way out
Tagged as: carbon dioxide, CO2, lawsuit, Peabody
John O'Sullivan is a British writer, retired academic and legal advocate who has ten years' of experience litigating against government corruption in the U.S. federal and state courts.
http://www.climategate.com/worlds-biggest-coal-company-brings-us-government-to-court-in-climate-fraud
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Very interesting!
This suit, it seems to me, is quite well positioned to really foul up the Watermelons backdoor strategy.
I hope you will be able to keep us abreast of the story as it develops.
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NYT
MORRISTOWN, Tenn. — On a quiet street in this little town in the foothills of the Smoky Mountains lives a family of refugees who were granted asylum in the United States because they feared persecution in their home country.
The family came to the United States in 2008 from Germany, where children are required to attend an officially recognized school, be it public, private or religious.
The reason for that fear has rarely, if ever, been the basis of an asylum case. The parents, Uwe and Hannelore Romeike, want to home-school their five children, ranging in age from 2 to 12, a practice illegal in their native land, Germany.
Among European countries, Germany is nearly alone in requiring, and enforcing, attendance of children at an officially recognized school. The school can be private or religious, but it must be a school. Exceptions can be made for health reasons but not for principled objections.
But the Romeikes, who are devout Christians, said they wanted their children to learn in a different environment. Mr. Romeike (pronounced ro-MY-kuh), 38, a soft-spoken piano teacher whose young children greet strangers at the front door with a startlingly grown-up politeness, said the unruly behavior of students that was allowed by many teachers had kept his children from learning. The stories in German readers, in which devils, witches and disobedient children are often portrayed as heroes, set bad examples, he said.
“I don’t expect the school to teach about the Bible,” he said, but “part of education should be character-building.”
In Germany, he said, home-schoolers are seen as “fundamentalist religious nuts who don’t want their children to get to know what is going on in the world, who want to protect them from everything.”
“In fact,” he said, sitting on his sofa as his three older children wrote in workbooks at the dining table, “I want my children to learn the truth and to learn about what’s going on in the world so that they can deal with it.”
The reasoning behind the German law, cited by officials and in court cases, is to foster social integration, ensure exposure to people from different backgrounds and prevent what some call “parallel societies.”
“We have had this legal basis ever since the state was founded,” said Thomas Hilsenbeck, a spokesman for the Ministry for Culture, Youth and Sport in the Romeikes’ state, Baden-Württemberg. “This is broadly accepted among the general public.”
The family has been here for some time, having left Germany in 2008. But it was not until Jan. 26 that a federal immigration judge in Memphis granted them political asylum, ruling that they had a reasonable fear of persecution for their beliefs if they returned.
In a harshly worded decision, the judge, Lawrence O. Burman, denounced the German policy, calling it “utterly repellent to everything we believe as Americans,” and expressed shock at the heavy fines and other penalties the government has levied on home-schooling parents, including taking custody of their children.
Describing home-schoolers as a distinct group of people who have a “principled opposition to government policy,” he ruled that the Romeikes would face persecution both because of their religious beliefs and because they were “members of a particular social group,” two standards for granting asylum.
“It is definitely new,” said Prof. Philip G. Schrag, the director of Georgetown Law School’s asylum law program, who added that he had never heard of such a case. “What’s novel about the argument is the nature of the social group.”
But, he said, given the severity of the penalties that German home-schoolers potentially face, the judge’s decision “does not seem far outside the margin.”
Immigration and Customs Enforcement has appealed the decision, Mr. Romeike’s lawyer said Friday. A spokesman for the agency declined to comment, citing the litigation.
The Romeikes had never heard of home schooling when they set out to find an alternative to the local public school in Germany, where their two oldest children — now 11 and 12 — were having trouble with rowdy classmates. The nearby private and religious schools, Mr. Romeike said, were just as bad or even worse.
Then a woman in their church mentioned that some families, though none in the church itself, had taken their children out of school altogether.
“She knew a family, but she didn’t want to mention their name because it wasn’t legal,” Mr. Romeike said.
Months of research followed: the Romeikes read articles, sat in on court cases and talked to other home-schoolers in Germany. Eventually they decided to give it a try. Working with a curriculum from a private Christian correspondence school — one not recognized by the German government — they expected to be punished with moderate fines and otherwise left alone.
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But they soon discovered differently, he said, facing fines eventually totaling over $11,000, threats that they would lose custody of their children and, one morning, a visit by the police, who took the children to school in a police van. Those were among the fines and potential penalties that Judge Burman said rose to the level of persecution.
Mr. Romeike began looking to other countries, but his inability to speak anything other than German or English limited his options. Then, at a conference for home-schoolers in 2007, he saw Mike Donnelly, a lawyer for the Home School Legal Defense Association, a Virginia-based advocacy organization
Long before the Romeikes had begun their fight, lawyers at the association had been discussing the situation in Germany. They had tried litigating cases one by one, usually unsuccessfully.
In 2006, after the European Court of Human Rights declined to hear a petition by home-schooling parents that had failed in German courts, lawyers at the association decided to add a political line of attack to the legal one, both to raise awareness of the German policies and to find some broader solution to the issue.
At a brainstorming session, one of the lawyers, Jim Mason, came up with the idea of petitioning for political asylum.
“I don’t know German law or German courts,” Mr. Mason said, “but I do know American courts.”
Another German home-schooling family had already moved to Morristown, so the Romeikes sold many of their belongings, including their grand piano, and came here too. The court battle lasted over a year, and while the Romeikes’ lawyers said they had expected to succeed, they were surprised by the vigor of the judge’s opinion. So was the German government.
“We’re all surprised because we consider the German educational system as very excellent,” said Lutz Hermann Görgens, the German consul general in Atlanta. He defended Germany’s policy on the grounds of fostering the ability “to peacefully interact with different values and different religions.”
Mr. Romeike said he would like to return to Germany if the laws became more amenable to home schooling. There is still hope, he said, though the political landscape does not look too promising right now.
In the meantime, he added, “it’s a good learning experience.”
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Using Guns to Protect Liberty
Posted by Ilya Shapiro
Tomorrow the Supreme Court will hear oral argument in McDonald v. Chicago — the Second Amendment case with implications far beyond gun rights. The Court is quite likely to extend the right to keep and bear arms to the states and thereby invalidate the Chicago handgun ban at issue, but the way in which it does so could revolutionize constitutional law.
In response to the oppression of freed slaves and abolitionists in southern and border states after the Civil War, the Fourteenth Amendment’s drafters sought to protect individual rights from infringement by state and local governments. The amendment’s Due Process Clause and Privileges or Immunities Clause provided overlapping but distinct protections for these rights. The Court decided in the 1873 Slaughter-House Cases, however, that the Privileges or Immunities Clause only protected Americans’ rights as national, not state, citizens. This reactionary holding eviscerated the clause, rendering it powerless to protect individual rights from state interference.
McDonald provides the Court an opportunity to overturn the Slaughter-House Cases and finally restore the Privileges or Immunities Clause to its proper role as a check against government intrusion on individual rights. Doing so would secure Americans’ natural rights, such as the freedom of contract and the right to earn an honest living, without enabling judges to invent constitutional rights to health care or welfare payments. For a more detailed discussion of McDonald’s potential implications, and how the Court should rule, see my recent op-ed here.
I will also be participating in several public events this week on McDonald, the Fourteenth Amendment, and firearm regulation. Today at 4:00 p.m., I will be speaking at a Cato policy forum, which will be broadcast live on C-SPAN and which you may watch online here. Tomorrow at 3:30 p.m., I will participate in a post-argument discussion of McDonald at the Georgetown University Law Center, which event is cosponsored by the Federalist Society and the Georgetown Journal of Law and Public Policy (where Josh Blackman and I recently published a lengthy article on the subject). And on Wednesday at noon, I will be participating in a Cato Capitol Hill briefing on McDonald and the future of gun rights at the Rayburn House Office Building, room B-340 (more information here).
http://www.cato-at-liberty.org/2010/03/01/using-guns-to-protect-liberty/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Cato-at-liberty+%28Cato+at+Liberty%29
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Second post:
Miller has gummed up Second Amendment interpretation for a while. This is an interesting deconstruction of its architect.
Why United States v. Miller was so badly written
The Volokh Conspiracy ^ | 27 February, 2010 | Dave Kopel
Before District of Columbia v. Heller, the 1939 decision United States v. Miller was the Supreme Court’s leading decision on the Second Amendment. Miller was, to put it mildly, obliquely written. As Michael O’Shea has detailed, the opinion seems mainly concerned with whether the gun in question was a militia-type weapon, which would suggest that the decision is congruent with a well-established line of state right to arms cases (some of which were cited in Miller) that all persons had a right to arms, but that the right only encompasses militia-type arms (and not, therefore, Bowie knives or other arms associated with disreputable brawlers). However, Miller is not clearly written, and over the subsequent seven decades, there was much dispute about its meaning. The disputes were almost inevitable, in that Miller is terse and oblique, and, except for a history of the early American militia, provides almost no explication or analysis.
At the oral argument in Heller, Justice Kennedy noted that Miller “kind of ends abruptly.” In the Heller decision, the Court observed that Miller was “virtually unreasoned.” Many scholars have wondered what Justice McReynolds was trying to do by writing such an opinion.
The Heller Court pointed out that many lower courts had “overread” Miller. A recent post on the Legal History Blog provides some evidence that legal scholars may also have overread Miller, for Miller may not have been written to mean much at all, other than perfunctorily upholding the National Firearms Act against a facial challenge. The post highlights Barry Cushman’s 2003 University of Chicago Law Review article Clerking for Scrooge. Cushman’s article reviews the 2002 book The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR’s Washington.
Since high school, John Knox had been star-struck by the Supreme Court Justices, attempting to strike up correspondences with them, sending them birthday greetings, and so on. After graduating from Harvard Law School, Knox landed a clerkship with Justice James McReynolds for the 1936–37 term. McReynolds preferred to work out of his D.C. apartment, rather than in the Supreme Court’s then-new building. Knox’s role was secretarial. Knox later wrote: “I appreciated his anti-New Deal view and agreed with it, but that was the only thing I could possibly agree with him on. He was selfish to an extreme, vindictive, almost sadistically inclined at times, inconceivably narrow, temperamental, and heaven knows what. All of his employees lived in a reign of terror and were crushed under foot without any hesitation on his part.”
More relevantly for Miller, McReynolds “found great difficulty in expressing himself in writing and, sadly enough, was genuinely lazy.” In the September of the clerkship, Knox had dinner at the home of Mr. and Mrs. Edward Everett Gann. The Ganns were well-connected in Washington; Mrs. Dolly Gann was the sister of Herbert Hoover’s Vice-President, Charles Curtis (1929–33). Mr. Gann was a friend of McReynolds, and accidentally caught McReynolds in a tryst with a woman. Knox recalled Gann’s words: “I concluded finally that he is not really interested in the work of the Court any more. He’s old, evidently bored with life and would probably retire now if he could do so without letting other conservatives on the Court ‘down.’”
While McReynolds was remarkably even-tempered when President Roosevelt announced his Court-packing plan in 1937,
McReynolds appears to have been equally if not more greatly irritated by the amount of work he had to do in the spring of 1937. One of McReynolds’s defining characteristics, on Knox’s account, was sloth. . . . Nor was Knox impressed with the amount of time McReynolds put into the preparation of those opinions he actually did write. The first opinion of the term went through only two drafts, and McReynolds spent only about three and one-half hours working on it, including the hour he had spent studying the briefs of the case before he had begun his dictation. He devoted only slightly more time to his second opinion. Laboring over opinions in a “scholarly” manner was apparently not Mac’s style.
McReynolds was upset when he was assigned the dissent in an important labor law case (Anniston Manufacturing Co v Davis), which he knew would have to be long. His dawdling delayed the release of the opinion, eventually leading the other dissenters to come to his apartment to try to help him get the opinion done. McReynolds finally decided “he was going to employ the ‘paste and shears’ method, quoting verbatim from lower court opinions excerpted in the briefs rather than composing his own prose.”
Now United States v. Miller becomes easier to understand. All eight Justices (Douglas, then new to the Court, did not participate) have voted in conference to uphold the statute. The lower court opinion is a mere conclusory assertion. Miller’s attorney did not even brief or argue the case, but instead told the Court to rely on the Department of Justice brief. (We now know that the district court judge, the local U.S. Attorney, and, perhaps, the defense attorney, were colluding in order to bring the weakest possible case to the Supreme Court, in order to affirm the National Firearms Act.)
So imagine you’re Chief Justice Hughes. Given that you have to assign McReynolds a majority opinion from time to time, Miller is the perfect case. The Court is unanimous, meaning that McReynolds will not be burdened with responding to dissenting arguments. Indeed, since the case is uncontested, writing the majority opinion would be especially easy. McReynold’s product in Miller was consistent with his lazy and slapdash approach. Perhaps the other Justices, while recognizing that there was room for improvement in the opinion, decided not to press McReynolds for changes, lest McReynolds fail to get around to making any revisions, and thereby further delay the progress of the Court’s business.
All of the opinion-writing Justices in District of Columbia v. Heller took their work much more seriously than McReynolds apparently took his work in Miller, and so both the majority opinion and the two dissents directly and carefully addressed many of the important Second Amendment questions which McReynolds had conspicuously ignored.
http://volokh.com/2010/02/27/united-states-v-miller/
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http://reason.com/archives/2010/03/04/guns-for-all-privileges-and-im
Reason Magazine
Guns for All, Privileges or Immunities for None
The hearings in McDonald v. Chicago promise an unrevolutionary victory—but still an important one
Brian Doherty | March 4, 2010
Justice Antonin Scalia delivered the big laugh line of the hour at Tuesday’s Supreme Court hearings in McDonald v. Chicago. That case’s outcome will decide whether the Second Amendment rights vindicated in 2008’s D.C. v. Heller apply to states and localities. Scalia amused the crowd by asking a question that has perplexed some legal scholars and gun activists both for and against McDonald lawyer Alan Gura’s general goal of applying Second Amendment protections to all levels of American government.
To get the joke, such as it was, you first need the background about what was at stake. The Bill of Rights was originally interpreted to bind only the federal government. The framers of the 14th Amendment intended to change that, and bind the states as well in respecting Americans’ rights. This was in 1868, when recently freed slaves had their rights to work, own property, and bear arms widely abused and unprotected by state and local governments.
The history of the 14th Amendment's passage indicates that a certain part of the amendment was meant to bear the interpretive burden of applying—“incorporating” in the legal lingo—the Bill of Rights (and other restrictions on government power) to the states. That was the Privileges or Immunities Clause: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Since a controversial 1873 Supreme Court decision in a set of cases regarding a slaughterhouse monopoly in Louisiana, known as the Slaughterhouse Cases, the Privileges or Immunities Clause has been pretty much interpreted out of existence. The Supreme Court has instead used the vaguer and less textually sensible “due process of law" provision of the same amendment to incorporate certain rights against the states. Using that tool, the Court over the past century has already incorporated most of the Bill of Rights on the states, and some unenumerated rights as well. Gura elected to reverse this trend by arguing for incorporation of the Second Amendment on privileges or immunities grounds.
So Scalia asked Gura early in his 20 minutes of argument time on Tuesday: “Mr. Gura, do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due…process?... Why are you asking us to overrule 150, 140 years of prior law, when—when you can reach your result under substantive due—I mean, you know, unless you are bucking for a—a place on some law school faculty…?”
Scalia, reputedly a constitutional originalist, flashed some ugly colors with that laugh-provoking comment: He’d rather go with the easy precedential flow—even given a substantive due process argument that he openly admits he thinks is wrong but which he’s “acquiesced” to—then vindicate the actual intentions of the framers of a very important constitutional amendment.
Gura undoubtedly went for a daring gambit on privileges or immunities (in addition to, not at the expense of, the more traditionally successful due process argument). He did so, first, because he thought it was the correct argument based on constitutional language and history. But he, and many other legal scholars, was also excited because a revival of privileges or immunities could give courts new power to restrict states and localities from violating other rights much on the minds of the 14th Amendment’s framers.
Gura quoted some of them, from the 1866 Civil Rights Act: “To make and enforce contracts…to inherit, purchase, lease, sell, hold and convey real and personal property.” A properly grounded application of the privileges or immunities clause could help vindicate the sort of economic liberties considered out of fashion and meaningless in the higher courts since the early 20th century days of the Lochner case.
While nothing is certain until the decision (or decisions) come down later in the year, the general consensus is that Gura has at least the same five justices who revived the Second Amendment in Heller prepared to apply it to the states via the Due Process Clause. This includes Scalia, despite his expressed doubts about the validity of due process incorporation in general. Thus, Gura and the McDonald team win.
Gura cast his mission so ambitiously, though, that he may have created an unfortunate public relations problem for his team. His impending victory might be spun as a defeat. There were elements in the gun-rights community, including the National Rifle Association (NRA) (who won argument time for their advocate Paul Clement at the hearings even though McDonald was not their case), who thought Gura reached for too risky a victory for economic and other liberties when he should have kept his eye on the Second Amendment ball. The NRA’s Clement kept it simple, insisting before the court that “Under this court's existing jurisprudence, the case for incorporating the Second Amendment through the Due Process Clause is remarkably straightforward. The Second Amendment, like the First and the Fourth, protects a fundamental preexisting right that is guaranteed to the people” and thus should be incorporated against the states just as those other amendments were.
In his half hour before the justices, Chicago’s counsel James Feldman maintained that, since guns can hurt people, localities’ power to protect public safety should allow them to regulate guns as much as they want. Not wanting to re-argue Heller (unlike Justice Steven Breyer, who is still obsessed with the militia clause as presumptively dominating the purpose of the Second Amendment, contra Heller), Feldman asserted that a fundamental right to self-defense might exist, but that right was not infringed fundamentally by the banning of any specific variety of weapon, as Chicago did with handguns. Scalia wondered why Feldman seemed to think an unwritten right to self-defense existed that states should honor when he didn’t think that the written right to keep and bear arms had to be thusly honored.
The confused and random jumble of issues and concerns that flowed out in the hour at the Court shows that, while using due process may be the easiest way out for lazy justices who don’t want to think freshly or step outside a middle-of-the-road consensus, the inherent vagueness of due process makes actual legal reasoning hard—unnecessarily so, given the clearer set of historical concerns about privileges or immunities that were on the minds of the Republicans who pushed the 14th Amendment in the late 1860s.
The absurdity of legal reasoning unmoored from the historical understanding of liberty rights was apotheosized in Breyer’s reference to a "Madison Chart,” in which we decide on how much judicial respect various rights would be granted by imagining James Madison ranking their importance on a chart. Breyer avers, apparently consulting Madison’s shade, that guns for the militia would be listed high on the chart, high above guns to shoot burglars. (Jokes about the “Madison Chart” ought to be law school staples down the line.)
The various justice's particular and often eccentric concerns further muddied any discernible lines of logic at the hearing. Justice Ruth Bader Ginsburg took a poorly conceived swipe at any originalist understanding of what rights the Privileges or Immunities Clause might guarantee by stressing the claim that women didn’t have the right to own property or have occupations separate from their husbands in 1868. (Meaning they wouldn’t now either if Gura won on privileges or immunities grounds?) Both she and Justice Anthony Kennedy tried to dredge a precise answer from Gura as to exactly what rights were protected by his conception of the clause, which he wouldn’t and couldn’t do. That the Constitution was designed to protect the people’s liberties through limiting government’s power and not listing citizens’ rights is not an idea much at the front of the justices’ minds.
Justice John Paul Stevens made it clear again and again that even if incorporated against the states, a Second Amendment right could and even ought to be restricted to the narrowest version of Heller: commonly used weapons for self-defense in the home. Even Scalia made it clear that he doesn’t think state level restrictions on concealed carry would necessarily be in danger under an incorporated Second Amendment, and both Chief Justice John Roberts and Justice Kennedy made it clear that an incorporated Second Amendment does not mean a Second Amendment whose reach was as wide as the gun rights community might like. Roberts spelled it out like this: The Second Amendment “is still going to be subject to the political process if the Court determines that it is incorporated in the Due Process Clause. All the arguments [Chicago’s lawyer Feldman made] against incorporation it seems to me are arguments you should make in favor of regulation under the Second Amendment. We haven't said anything about what the content of the Second Amendment is beyond what was said in Heller.”
That’s worth remembering as we wait for the decision and its aftermath. In the usual media scrum outside the courtroom as the hearings let out, the Brady Center’s Paul Helmke was OK with losing complete bans on commonly used weapons such as Chicago’s, but insisted most (though he denied many even existed) local gun regulations are sensible public safety measures and would certainly survive future legal challenges even if Gura wins. The NRA’s Paul Clement cagily refused to say what sort of lawsuits the NRA might file challenging other state gun regulations in the event of a McDonald victory.
The future of gun rights, then, is brighter than before, though not as bright as the most tenacious defenders of self-defense rights might like. But what of the future of the Privileges or Immunities Clause? It seems as if the clause arose, goosed by Gura, from a grave that Slaughterhouse had sealed it in, only to promptly have a stake driven through its heart and its head chopped off and then shoved back in to the grave by the decidedly unfriendly approach of the justices. In the pre-hearing debate over whether privileges or immunities had a chance in McDonald, the very fact the court took up Gura’s case as opposed to a simpler due process case from the NRA also up for consideration led some to assume the Court must have wanted a chance to seriously rethink the issue. The evidence from Tuesday morning showed no sign of such interest in privileges or immunities.
However, at a Hill briefing by three privileges or immunities scholars and advocates on Wednesday—Clark Neily of the Institute for Justice, Ilya Shapiro of the Cato Institute, and Timothy Sandefur of the Pacific Legal Foundation—the mood was still defiant, not defeated.
To roughly summarize a set of arguments I heard this week in interviews and at that briefing on the future of privileges or immunities, just as Progressive-era legal doctrinal victories such as “rational review” evolved over generations to overtake the profession, a rising group of younger litigators and legal scholars are united in agreeing that Slaughterhouse was an embarrassment and must go. And scholars and advocates from different sides of the political spectrum, for different reasons, are eager to see privileges or immunities arguments become an active part of the arsenal for courts and lawyers. (Some progressives see in it a stronger chance to cram various welfare rights into the Constitution, though more libertarian fans of the clause think the clearer historical record makes the clause a weaker, not stronger, tool than due process by which to work such legal mischief.)
But no matter what the consensus is, a privileges or immunities victory will eventually have to be won in the Supreme Court, and in my read there is at best one person on the current Court who would vote for it. Justice Clarence Thomas, silent as always in this week’s hearings, has in the past expressed an interest in rethinking privileges or immunities. There’s a strong expectation on the part of some privileges or immunities fans that Thomas will write a concurring opinion uniting in the holding that the Second Amendment is incorporated, but with a separate set of privileges or immunities-based reasoning that could become a rallying flag for future arguments about the clause’s continued value. However, what sort of case might be on the horizon to bring it back before the court is unclear. What seems clear is that at least four justices have to go and be replaced by jurists friendly to the abandoned clause for it to become a meaningful part of American jurisprudence. We will have the privileges or immunities fight with us for a long time to come.
On the night of the hearings, I stepped outside the constitutional debate, and glimpsed the heart of why such high-level abstractions matter—the reason why the Supreme Court was even listening to these arguments. Cases have plaintiffs, and plaintiffs are people. At a reception sponsored by one of the case’s institutional plaintiffs, the Second Amendment Foundation, I met the lead plaintiff, Otis McDonald.
Otis McDonald will be the man—as a plaintiff—who vindicated the rights of every American who doesn’t live in a federal enclave to, at the very least, have adequate means to try to protect their lives, families, and property from violent danger. He’ll go down in the history books, to be sure, this 76-year-old man with a wife and eight kids.
He’s black, which is appropriate for both public relations and for history. It ties the arguments Gura made on McDonald's behalf to why the 14th Amendment exists: to guarantee that people of his color would have the liberties and protections white Americans of the time were supposed to have enjoyed. As Gura declared right at the start of his presentation to the Court, “In 1868, our nation made a promise to the McDonald family that they and their descendants would henceforth be American citizens, and with American citizenship came the guarantee enshrined in our Constitution that no State could make or enforce any law which shall abridge the privileges or immunities of American citizenship.”
Let me tell you something else about Otis McDonald: If you are lucky enough to meet the guy, you’re going to love him. Really. In about a half hour of conversation, both one-on-one and in a small group, the guy was devastatingly charming, in a completely unstudied way. He’s compelling and convincing and real, telling quotidian stories about being late for planes and late-night fishing; and equally so when getting historical and cosmic about the arc of his life and the role he knows he’s playing in his country’s history. One minute laughing and light, the other giving a sincerely tear-jerking account of the pride and gratitude he feels toward everyone else, especially the younger generation, advancing the scholarship and advocacy of his and his fellow Americans’ rights. After that half hour, I was on this guy’s side, just as a fellow human being. And a dream client for a civil rights case like this to boot, as the lawyers present agreed enthusiastically.
That the city of Chicago prevents this man from making the best choice available to him to protect himself and his family from the very real threats that surround him is, simply and with no constitutional history or theory required, wrong. It is a wrong that Gura's arguments on Tuesday will likely right. And while libertarian legal scholars (and some leftist ones) may feel dejected that Gura failed to win the Court over to the wisdom of overturning Slaughterhouse, McDonald, his fellow plaintiffs, and the rest of Chicago will because of his efforts be able to exercise a core human right unmolested. That is great news, news whose importance should not be clouded by the specifics of how it was won.
Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).
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Citing cases dating back as far as 1928, a judge has ruled that a young girl accused of running down an elderly woman while racing a bicycle with training wheels on a Manhattan sidewalk two years ago can be sued for negligence.
The ruling by the judge, Justice Paul Wooten of State Supreme Court in Manhattan, did not find that the girl was liable, but merely permitted a lawsuit brought against her, another boy and their parents to move forward.
The suit that Justice Wooten allowed to proceed claims that in April 2009, Juliet Breitman and Jacob Kohn, who were both 4, were racing their bicycles, under the supervision of their mothers, Dana Breitman and Rachel Kohn, on the sidewalk of a building on East 52nd Street. At some point in the race, they struck an 87-year-old woman named Claire Menagh, who was walking in front of the building and, according to the complaint, was “seriously and severely injured,” suffering a hip fracture that required surgery. She died three months later of unrelated causes.
Her estate sued the children and their mothers, claiming they had acted negligently during the accident. In a response, Juliet’s lawyer, James P. Tyrie, argued that the girl was not “engaged in an adult activity” at the time of the accident — “She was riding her bicycle with training wheels under the supervision of her mother” — and was too young to be held liable for negligence.
In legal papers, Mr. Tyrie added, “Courts have held that an infant under the age of 4 is conclusively presumed to be incapable of negligence.” (Rachel and Jacob Kohn did not seek to dismiss the case against them.)
But Justice Wooten declined to stretch that rule to children over 4. On Oct. 1, he rejected a motion to dismiss the case because of Juliet’s age, noting that she was three months shy of turning 5 when Ms. Menagh was struck, and thus old enough to be sued.
Mr. Tyrie “correctly notes that infants under the age of 4 are conclusively presumed incapable of negligence,” Justice Wooten wrote in his decision, referring to the 1928 case. “Juliet Breitman, however, was over the age of 4 at the time of the subject incident. For infants above the age of 4, there is no bright-line rule.”
The New York Law Journal reported the decision on Thursday.
Mr. Tyrie had also argued that Juliet should not be held liable because her mother was present; Justice Wooten disagreed.
“A parent’s presence alone does not give a reasonable child carte blanche to engage in risky behavior such as running across a street,” the judge wrote. He added that any “reasonably prudent child,” who presumably has been told to look both ways before crossing a street, should know that dashing out without looking is dangerous, with or without a parent there. The crucial factor is whether the parent encourages the risky behavior; if so, the child should not be held accountable.
In Ms. Menagh’s case, however, there was nothing to indicate that Juliet’s mother “had any active role in the alleged incident, only that the mother was ‘supervising,’ a term that is too vague to hold meaning here,” he wrote. He concluded that there was no evidence of Juliet’s “lack of intelligence or maturity” or anything to “indicate that another child of similar age and capacity under the circumstances could not have reasonably appreciated the danger of riding a bicycle into an elderly woman.”
Mr. Tyrie, Dana Breitman and Rachel Kohn did not respond to messages seeking comment.
This article has been revised to reflect the following correction:
Correction: October 30, 2010
An article in some editions on Friday about a lawsuit that claims an elderly woman was severely injured by two 4-year-olds racing their bicycles on a Manhattan sidewalk misstated the timing of the woman’s death. The woman, Claire Menagh, died of unrelated causes three months after she was struck, not three weeks.
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Even though it is POTH, this editorial sounds reasonable to me.
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Unexpected wireless charges are a chronic affliction of life on the grid. The industry triggers more complaints from consumers than any other. AT&T Mobility, by consumer rankings, is the worst. Its performance in a case the Supreme Court heard recently has done nothing to improve that reputation.
This is the latest in the arbitration war — a battle over whether the United States will increasingly have a privatized system of justice that bars people from enforcing rights in court and, if so, what will be considered fair in that system. It would be grossly unfair for the court to let the corporation get away with what it wants to in AT&T Mobility v. Concepcion — a case that involves a small amount of money and a huge principle.
When Vincent and Liza Concepcion signed up for AT&T cellphone service, they received two new phones in exchange for making a two-year agreement. To their consternation, AT&T charged them $30.22 in sales tax for the phones. The Concepcions sued the company for fraud in Federal District Court and their case and another were consolidated as a class action.
Because of an arbitration clause in its customer agreement, AT&T insisted that the Concepcions had to submit their claim to individual arbitration. The federal district judge said no. The judge ruled that the agreement is “unconscionable” under California law — imposed by the company harshly, coerced and not consented to. The United States Court of Appeals for the Ninth Circuit forcefully upheld the decision.
The issue before the Supreme Court is the Federal Arbitration Act, which recognizes some kinds of arbitration agreements as enforceable obligations — and whether that pre-empts the California law. The court must decide if the state law applies only to arbitration agreements, and not contracts generally, or if it hinders Congressional desire to treat arbitration agreements and other contracts similarly and promote speedy resolution of claims.
California says that its law does neither and the appellate court agrees. AT&T contends that California law isn’t what the state says it is. AT&T is asking the Supreme Court to intrude on California’s sovereignty and second-guess interpretation of state law by state courts.
During the recent argument in the Supreme Court, Justice Elena Kagan asked AT&T’s lawyer, “Now, who are we to say that the state is wrong about that?” Justice Antonin Scalia asked a similar question: “Are we going to tell the State of California what it has to consider unconscionable?” When the lawyer answered yes, Justice Stephen Breyer said rhetorically: “Why, why, why?”
The lawyer’s best shot at victory was to portray California law as extreme. Unfortunately for him, courts applying law of at least 19 other states have reached the same conclusion as California, including five federal appeals courts. Under California law, an agreement isn’t enforceable if it requires a customer to submit to individual arbitration that can’t be effective. It can’t be effective, as in this case, if the payoff is so paltry that it takes away incentive to challenge fraud or deception. AT&T’s arbitration agreement supposedly assures customers “a minimum recovery of $7,500, plus double attorneys’ fees, if the arbitrator awards them more than” an offer from AT&T. Translated: AT&T can pay the claim’s value — here, $30.22 — before an arbitrator is picked.
The Ninth Circuit said this “artifice” has “the practical effect of rendering” AT&T “immune from individual claims.” AT&T’s arbitration clause is unconscionable. The Supreme Court should say so.
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This seems like a simple application of what was dubbed "New Judicial Federalism." Justice SDO would be pleased, I suspect.
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BD:
I am not as in touch with legal issues as I once was. Would you please flesh out the term "New Judicial Federalism" for me please?
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"Under the theory of new judicial federalism, a state court may interpret its state constitution in the same way that federal courts have interpreted an analogous federal provision. On the other hand, a state court may, without violating the U.S. Constitution, interpret a state constitution as granting an individual more protection than the federal rights."
http://www.law.csuohio.edu/lawlibrary/resources/lawpubs/ohioconlaw/documents/Renquist.pdf
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Thank you. Delighted to hear it, but , , , how on earth is that new?
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The idea is that if the state courts rely on the state constitution, rather than the U.S. Constitution, the SC would take a hands off approach to reviewing the decision. It was new in 1985, in Michigan v. Long (the Court's opinion for which SDO authored), because of the prior courts decisions of the 1950's-1970's.
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New rights and more rights, that sounds good. A state court finding a new right of free health care would be an example?
How about changing marriage from a man and a woman becoming husband and wife into an any-gender experience - no matter what the people of the state say - and no matter what the U.S. Supreme Court would have said:
"We hold the Iowa marriage statute violates the equal protection clause of the Iowa Constitution."
- http://www.slideshare.net/LegalDocs/findlaw-iowa-gay-marriage-decision
Iowa voters oust justices who made same-sex marriage legal
http://www.cnn.com/2010/POLITICS/11/03/iowa.judges/index.html
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On the Death Sentence
December 23, 2010
John Paul Stevens
http://www.nybooks.com/articles/archives/2010/dec/23/death-sentence/?pagination=false
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Thanks to Bigdog for posting and opening the issue here. There are two things going on in that writing, his coverage of a book by David Garland and of course his own views on the (lack of) underpinnings for the death penalty.
Start with his last and most important point first: "finality includes the risk that the state may put an actually innocent person to death"
On this point, we can all agree and that may be enough alone to oppose the death penalty. On the rest of the analysis, I find my own view to be different than Stevens.
Stevens writes of 5 classes of persons affected by capital crimes. Summarizing:
1) victims, 2) survivors, 3) judicial process, 4) the general public, 5) inmates on death row. In each category, I categorically disagree with the great retiring Justice.
1) The victims, Stevens says, are dead and have no continuing interest. Below I will cite one example, Mariane Pearl, then-pregnant wife of beheaded WSJ reporter Daniel Pearl. Why not take an extreme example for an extreme penalty? Stevens says she is a survivor, not a victim. I disagree. She gets to live with this just like a rape or an arm cut off of her own.
2) Survivors: "often suffer enormous grief and tangible losses. The harm to this class is immeasurable; but punishment of the defendant cannot reverse or adequately compensate any survivor’s loss." - The goal of justice after a heinous crime or string of murders is not to bring the loved ones back or fully compensate anyone. A straw-man argument to my reading, but let's continue.
3) Stevens examines the death penalty's place in 'judicial process' without any mention of the use by prosecutors and law enforcement of the possibility or not of death penalty to get information, cooperation, a guilty plea or to help solve other crimes or gain additional convictions. Am I mistaken about this aspect of the death penalty or did Stevens leave out an important point?
4) Stevens notes nothing that the general public gains justifying a death penalty, even though earlier in the piece he already conceded the general public believes otherwise. The term elitist sneaks into my mind for someone who knows other people's gain better than they do.
5) Stevens laments that many inmates on death row have repented and made positive contributions to society. The finality of an execution always ends that possibility. - True about some people changing to some extent in some cases. We don't have an accurate way of measuring repent. My view and I think that of those who favor the death penalty is that some crimes against humanity take the convict beyond the opportunity for a second chance. Stevens' concern for killing the guilty who repented never caused his pen to move an inch to save any of the 34 million innocent killings over convenience reasons with their first chance taken away during his 34 years of upholding Roe and deciding Planned Parenthood v. Casey, but I digress...
Let's meet a victim/survivor. In 2002 I watched Jim Lehrer interview the surviving wife of Daniel Pearl. She said something that stuck in mind ever since. Asked about the death penalty for those who perpetrated this brutal killing, in a heavy French accent she said " I think this guy is a nuisance for humanity". Jim Lehrer replied "a what?" Pearl: "He's a nuisance for humanity."..."I would certainly not cry over his death". http://www.pbs.org/newshour/bb/terrorism/jan-june02/pearl_3-18.html
My thoughts into her words: When you behead an innocent journalist , there isn't something left to repent or redeem here on earth. You have made yourself a detraction from humanity, not a part of it. How we deal with such extreme things is a moral choice for our society to live with. We can release with wishful thinking, we can hold for life or we can execute the very worst offenders. These are choices and Stevens and Garland add thoughtful insights, but one-sided analysis to that (IMO). Speedier execution in some cases would be more worthwhile question from my point of view. We as a species or as a civilization draw a line, a moral line. We don't kill for adultery or shoplifting or Stevens example, drunken drivers who cause fatal accidents. But some crimes are so heinous that you are entitled to all the protections of our legal system including reasonable doubt and nearly endless appeals, but there are cases where at the end you are out. You have given up your right to live in our society, to breathe the air or eat the fruit, even among our guards and cement walls. Death penalty doesn't fix what happened. It may not deter others, but the very worst crimes (assuming guilt and after proper appeals) can be met with closure and the finality of a penalty that is in fact an ending.
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Part of the social contract is that in exchange for the state's criminal justice power monopoly, that the legal system provides tangible justice for the friends and family of those victimized by criminals. Failure to provide a sense of justice done, would motivate some to seek their own justice, which corrodes the rule of law.
My wife currently serves as a correctional officer in a maximum security prison, where many of the inmates there already know they will die in custody. The death penalty may deter some of those inmates from murdering the correctional officers. Aside from that, many of these inmates have nothing left to lose and have already demonstrated a willingness to take human life without any moral restraint.
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The 5th Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
** "nor be deprived of life, liberty, or property, without due process of law". So, as long as due process of law occurs, then the deprivation of life is constitutional.**
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Your post opens a great many questions. There is a fair amount of discussion about the judicial selection process at the state level these days. Justice O'Connor has been speaking on this subject for years, with a view that elected judges, by definition, are not independent and therefore cannot make unbiased type of decisions. In contrast, several people including Chris Bonneau and Melinda Gann Hall, in a book aptly called "In Defense of Judicial Elections," support the idea of an elected judiciary. It is a hot topic at the moment.
To your other point, it should be noted that there are those who feel as though same sex marriages allowed in one state should be recognized in the other states in the union. This is because of the Full Faith and credit clause in Article IV of the Constitution which states:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
New rights and more rights, that sounds good. A state court finding a new right of free health care would be an example?
How about changing marriage from a man and a woman becoming husband and wife into an any-gender experience - no matter what the people of the state say - and no matter what the U.S. Supreme Court would have said:
"We hold the Iowa marriage statute violates the equal protection clause of the Iowa Constitution."
- http://www.slideshare.net/LegalDocs/findlaw-iowa-gay-marriage-decision
Iowa voters oust justices who made same-sex marriage legal
http://www.cnn.com/2010/POLITICS/11/03/iowa.judges/index.html
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Thank you, DougMacG for your kind words. Before I discuss your points, and GM's excellent offerings, I want to say that the reason that I posted the JPS piece was not because I agree with his points, but because I thought it worthy of discussion. A book review by a former USSC justice is noteworthy, in my opinion.
That said, I AM opposed to the death penalty, so the essay worked nicely, in my opinion. To your points 1-5:
1. Your formulation is merely a rewording of JPS original view, placing the murdered individual or individuals' family, etc. as victims. I disagree with this. To discuss a different crime: I am negatively impacted by shoplifting (higher prices, etc.) but to say I am victim doesn't give the store owner his due. Can I, or should I, file a class action suit against every shoplifter because I am impacted? Of course not. The store merchandise is the target, and the store owner is the victim. Likewise, the "Butterfly Effect" should not be understood to begin beyond the murdered. It creates a question for which there can be no answer: who is the victim of a crime?.
2. It depends on your view of justice. In the trailer for the new movie "Faster" there is a scene where some lady yells "I hope you kill them all." This action is meant to be compensatory. While this is a movie, there are plenty of people who have this feeling in American society. But there many views of justice (see http://faculty.cua.edu/hoffmann/courses/201_1068/Plato-3%20Views%20on%20justice.pdf for a discussion of some of these).
3. I will concede point 3, at least mostly. There are certainly instances where the threat of the death penalty can be a service to the law enforcement community. However, there are those who fear that the death penalty threat also leads people to confess to crimes they did not committ in an effort to avoid being put to death.
4. As a martial artist, I am sure you are familiar with the difference between feeling secure and being secure. Does that make you an elitist? It also relates to different forms of representation. For example, should a member of Congress merely represent his consituents, or should he represent the best interest of the country, even if that means that his smaller constituency is effected negatively, at least in the short term?
5. That is a digression, yes.
My (admittedly hypothetical) view: let's say there is a gang member who done gang member things, which likely include murder, but who "sees the light" for whatever reason, and decides to make amends. He dedicates his life to ending gang violence, and several local youth say that his actions prevented them for joining a gang and participating in gang activities, likely including murder. Is this not redemption, or at the very least an effort to rectify his prior nuisance?
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I think this is exactly Justice Stevens' point. For example, when elected judges are more likely to execute than non-elected judges, then there is no equal protection of the laws, and that IS unconstitutional.
Your view of the social contract is incomplete. First, there are many ideas about the genesis and structure of the social contract, what binds members to society, and the like. Hobbes, Locke, Rousseau, and more recently John Rawles have very different views on the composition of the social contract. Some might argue that the family and friends of the victim cede the state's criminal justice power period, with no guarantee that the family or friends are satisfied with the "tangible" justice the state decides on. And, that could benefit death penaly proponents. If the family of a murder victim did not want the death penalty, it is still within the descretion of the prosecutor and judge to seek and sentence the death penalty. There is no reason that the state would seek the family's preferences on this.
The 5th Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
** "nor be deprived of life, liberty, or property, without due process of law". So, as long as due process of law occurs, then the deprivation of life is constitutional.**
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"I think this is exactly Justice Stevens' point. For example, when elected judges are more likely to execute than non-elected judges, then there is no equal protection of the laws, and that IS unconstitutional."
**There is endless variation in the outcomes of the criminal justice system. Attractive people fare better than the unattractive, as an example. The quality of the defense and prosecution, the judge's predisposition, the members of the jury, can all cause identical crimes to result in very different verdicts and sentences. If you want to create a standard where any deviation from absolute equality means there is no equal protection, then NO crime can be punished constitutionally.
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My view of the social contract is informed by my interactions with those involved in the various aspects of the criminal justice system, including those who have committed violent crimes seeking their own vision of justice, mostly what NPR calls "Members of the gang community". Funny enough, they don't often refer to various philosophers when relating their views on "Putting work in for my homie".
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**Prosecutors do tend to listen to the wishes of the victims in criminal cases, or victim's family in a murder case.**
http://www.ncvc.org/ncvc/main.aspx?dbName=DocumentViewer&DocumentID=32515
Overview
The term "victim impact statement" refers to written or oral information about the impact of the crime on the victim and the victim's family. Victim impact statements are most commonly used at sentencing. Such statements provide a means for the court to refocus its attention, at least momentarily, on the human cost of the crime. They also provide a way for the victim to participate in the criminal justice process. The right to make an impact statement generally is extended beyond the direct victim to homicide survivors, the parent or guardian of a minor victim, and the guardian or representative of an incompetent or incapacitated victim.
In a recent survey by the National Center for Victims of Crime, over 1300 victims were asked to rate the importance of various legal rights. Over 80% stated that their ability to make a victim impact statement at sentencing and at parole was "very important."(1)
Every state allows some form of victim impact information at sentencing. The majority of states allow both oral and/or written statements from the victim at the sentencing hearing, and require victim impact information to be included in the pre-sentence report. As of 1997, 44 states and the District of Columbia allow information about the impact of the offense(s) on the victim to be included as part of the pre-sentence report; every state allows victim impact statements at the sentencing hearing, and 47 of them allow oral statements at sentencing. (All statutes discussed in this summary are current through 1997 unless otherwise indicated. Source: National Center for Victims of Crime, Legislative Database.)
At the federal level, victim impact information is to be included in the pre-sentence report. In addition, as part of the Federal Crime Act of 1994, Congress gave federal victims of violent crime or sexual assault the right to speak at sentencing. Through the Child Protection Act of 1990, child victims of federal crimes are allowed to submit victim impact statements in measures which are "commensurate with their age and cognitive development," which could include drawings, models, etc.
Victim impact statements usually describe the harm the offense has had on the victim, including descriptions of the financial, physical, psychological or emotional impact, harm to familial relationships, descriptions of any medical treatments or psychological services required by the victim or the victim's family as a result of the victimization, and the need for any restitution. State law might list the elements to be included in the statement, or it may simply permit a "description of the impact of the offense." In addition, many states allow the victim to state his or her opinion about the appropriate sentence.
Along with victim impact statements at sentencing, the majority of states also permit victim input at the parole hearing of the offender. To provide such input, the victim is usually required to maintain a current address on file with the parole board, the prosecutor's office, or some identified criminal justice agency.
In a number of states, the original victim impact statement that was prepared for the sentencing hearing is included in an incarcerated offender's file by corrections and paroling authorities, and reviewed as part of the parole process. A number of states also invite victims to submit an updated impact statement which can include any evidence of communication they may have received from the offender or the offender's associates since sentencing, as well as any other new or updated information concerning the crime's impact on the victim (such as additional physical therapy, surgeries, etc., or continued psychological impact and/or treatment).
Less frequently, victims have input into bail hearings, pretrial release hearings, plea bargain hearings, and other proceedings. Georgia allows victims to submit an impact statement which shall be attached to the file and may be used by the prosecutor or court in making decisions at any stage of the proceedings involving predisposition, plea agreements, sentencing, or determination of restitution.
Generally, the law specifies that victim impact statements may be oral or written, but in several states the statement may also be made by means of videotape, audiotape, or other electronic means. Such flexibility in the form of the impact statement can be particularly beneficial for victims who wish to give input to a parole board, as the victim may live hundreds of miles from the facility where a parole hearing is held. Several states also allow child victims to submit drawings to describe the impact a crime has had on their lives.
The right to present victim impact information, whether written or oral, is usually guaranteed by law. However, some states leave the matter in the discretion of the judge or other officials (such as the parole board). While the laws do not always ensure that the victim impact statement will do more than allow victims a chance to express themselves, many states specifically require the court or board ruling on the offender's status to consider the victim's statements in making its decision.
In most states, a defendant has the right to contest assertions made in the victim impact statement. This is most often limited to objecting to factual statements in the statement. In a few states, the defendant or defense counsel may have the right to cross-examine the victim about the impact statement.
Until recently, victim impact statements were held inadmissible in cases where the death penalty was sought. However, the U.S. Supreme Court in Payne v. Tennessee (1991) reversed its earlier ruling and found that the admission of victim impact statements in capital cases did not violate the Constitution. A few states continue to prohibit the use of victim impact statements in death penalty cases.
For more information about the use of victim impact statements in your state, contact your local prosecutor's office, your state Attorney General's office, or your local law library.
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Glad to have BD with us.
"when elected judges are more likely to execute than non-elected judges, then there is no equal protection of the laws, and that IS unconstitutional."
The inference being that electing judges is to blame? Can we not equally say that unelected judges abusing the power which is in their hands to insert their own opinions are the unconstitutional ones?
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Glad to have BD with us.
"when elected judges are more likely to execute than non-elected judges, then there is no equal protection of the laws, and that IS unconstitutional."
The inference being that electing judges is to blame? Can we not equally say that unelected judges abusing the power which is in their hands to insert their own opinions are the unconstitutional ones?
Thank you, sir. As I said, I believe this is one of the points that Justice Stevens is making in his book review, yes. And your second point is one that can, indeed, be made. As I mentioned there is a great deal of debate about the selection process of judges currently. Again, I recommend the Bonneau and Hall book mentioned above.
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My view of the social contract is informed by my interactions with those involved in the various aspects of the criminal justice system, including those who have committed violent crimes seeking their own vision of justice, mostly what NPR calls "Members of the gang community". Funny enough, they don't often refer to various philosophers when relating their views on "Putting work in for my homie".
But the social contract is a creation of philosophers. You sound like a Hobbesian, given what seems to be your view of the state of nature. Once in the social contract, according to Hobbes, the ruler (prefered to be a strong, centralized monarch) has nearly total control of the process of goverance. Is this something that you desire, so that we do not revert to the state of nature, in which, of course, man's experience is solitary, poor, nasty, brutish and short?
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The social contract has been discussed by philosophers, they didn't invent it, just as physicists didn't invent gravity.
Nature and that includes humans are "red in tooth and claw". A quick look at how humans exist across the planet and through recorded history shows that places that lack the rule of law and/or the protection of individual freedoms are not the places most would want to live, though that tends to be the nasty, brutish reality for most humans.
My desire is to preserve the rule of law and public safety while balancing the rights and freedoms of the individual. Neither is absolute.
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The social contract has been discussed by philosophers, they didn't invent it, just as physicists didn't invent gravity.
Nature and that includes humans are "red in tooth and claw". A quick look at how humans exist across the planet and through recorded history shows that places that lack the rule of law and/or the protection of individual freedoms are not the places most would want to live, though that tends to be the nasty, brutish reality for most humans.
My desire is to preserve the rule of law and public safety while balancing the rights and freedoms of the individual. Neither is absolute.
Cute. One difference is that gravity is viewed through the same lens. Bodies with more mass have larger gravity, etc. There are, in contrast, several different conceptions of the social contract. While Hobbes's created view of the state of nature is one in which people's fates are terrible, this need not be the case (see Locke). And, how the SON is viewed plays a major role in the desired and expected powers and actions of the government which is set up to end the state of nature.
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"One difference is that gravity is viewed through the same lens."
It can be assumed that different cultures and different times recognized the phenomena of gravity, no matter what they called it and how they explained it. Offhand, I don't know what ancient chinese scholars called gravity or how they explained it worked. Aristotle thought things had an attraction to a location due to their inherent properties. Galileo worked on using the scientific method to document the phenomena without trying to explain it. Newton's concepts set the stage but were imperfect, but Einstein's space-time model has thus far become the dominant one for understanding gravity, at least until we take the next step forward towards a unified field theory.
There is a lot of fantasy and projection associated with non-western cultures and assumptions of some "noble savagery" inherent in a closeness with nature. I know that my tribe had very strange burial habits and a love of recreational sadistic torture for enemy captives that tend to undercut those that argue for the inherent goodness to be found in human nature. Take a quick trip to africa where slavery and horrific brutality are the norms in lots of different place. I'm not sure if the machete has been used as a tool nearly as much as it has been a weapon for atrocities there. Nothing like baskets full of severed hands to fuel the diamond trade.
Let's look at the muslim world. Great place so long as you aren't female or a non-muslim or interested in questioning the theology or mind poverty. The best places in asia are the most westernized. Hunter-gatherer tribes tend to have homicide rates far worse than any inner city warzone you'd find in the US. Europe is great, aside from it's bloodsoaked history and rapid absorption into the aforementioned muslim world.
So where exactly would I find that example of a happy state of nature that isn't in a disney film?
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"Sadistic torture for enemy captives" does not undercut the idea of a peaceful state of nature (at least not as a stand alone example). This happens within a social contract also. See, for example, early American history. Slaves were born outside of a social contract, had no chance of entering the social contact, and were still abused. That did not make the early United States a state of nature.
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And the slave trade originated within africa and then marketed and embraced by muslim arabs, as islam has no moral prohibition regarding slavery. The Dutch were the first europeans to get into the african slave trade. For every 1 african slave sent to the US, 7 went to Brazil. The US fought a horrific civil war to end slavery in the US. The US and England used their military forces to curb the slave trade, though it still goes on in africa and the muslim world.
So where do I look to find the state of nature you are describing?
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All of your examples are societies with social contracts taking advantage of those outside of their own social contract. I was not singling out the US slave history. i was using it as an example. You still haven't illustrated this horrible state of nature you claim is the basis of human interaction without government.
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Most anywhere on the planet. Most people live under some form of dictatorship/kleptocracy, or live without a formal government, where bands of thugs or bands of thugs under a warlord rob, rape and pillage at will. Even most hunter-gatherer tribes in various places engage in tribal warfare and clan warfare with a high rate of serious injury and fatality.
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http://www.edge.org/3rd_culture/pinker07/pinker07_index.html
In the decade of Darfur and Iraq, and shortly after the century of Stalin, Hitler, and Mao, the claim that violence has been diminishing may seem somewhere between hallucinatory and obscene. Yet recent studies that seek to quantify the historical ebb and flow of violence point to exactly that conclusion.
A HISTORY OF VIOLENCE
by Steven Pinker
Introduction
Once again, Steven Pinker returns to debunking the doctrine of the noble savage in the following piece based on his lecture at the recent TED Conference in Monterey, California.
This doctrine, "the idea that humans are peaceable by nature and corrupted by modern institutions—pops up frequently in the writing of public intellectuals like José Ortega y Gasset ("War is not an instinct but an invention"), Stephen Jay Gould ("Homo sapiens is not an evil or destructive species"), and Ashley Montagu ("Biological studies lend support to the ethic of universal brotherhood")," he writes. "But, now that social scientists have started to count bodies in different historical periods, they have discovered that the romantic theory gets it backward: Far from causing us to become more violent, something in modernity and its cultural institutions has made us nobler."
Pinker's notable talk, along with his essay, is one more example of how ideas forthcoming from the empirical and biological study of human beings is gaining sway over those of the scientists and others in disciplines that rely on studying social actions and human cultures independent from their biological foundation.
—JB
STEVEN PINKER is the Johnstone Family Professor in the Department of Psychology at Harvard University. His most recent book is The Blank Slate.
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http://www.sciencedaily.com/releases/2007/05/070514121651.htm
Female-Led Infanticide In Wild Chimpanzees
ScienceDaily (May 14, 2007) — Researchers observing wild chimpanzees in Uganda have discovered repeated instances of a mysterious and poorly understood behavior: female-led infanticide. The findings, reported by Simon Townsend, Katie Slocombe and colleagues of the University of St. Andrews, Scotland, and the Budongo Forest Project, Uganda, appear in the journal Current Biology.
Infanticide is known to occur in many primate species, but is generally thought of as a male trait. An exception in the realm of chimpanzee behavior was famously noted in the 1970s by Jane Goodall in her observations of Passion and Pom, a mother-daughter duo who cooperated in the killing and cannibalization of at least two infant offspring of other females. In the absence of significant additional evidence for such behavior among female chimpanzees, speculation had been that female-led infanticide represented pathological behavior, or was a means of obtaining nutritional advantage under some circumstances.
As the result of new field work involving the Sonso chimpanzee community in Budongo Forest in Uganda, the St. Andrews researchers now report instances of three female-led infanticidal attacks. Alerted to the killings by sounds of chimpanzee screams, the researchers directly observed one infanticide, and found strong circumstantial evidence for two others. Evidence suggested that in two of the cases, the killings were perpetrated by groups of resident females against "stranger" females from outside the resident group. Infants were taken from the mothers, who were injured in at least two of the attacks; in at least one case, adult males in the area exhibited displaying behavior, with one old male unsuccessfully attempting to separate the females.
The authors point out that these new observations indicate that such female-led infanticides are neither the result of isolated, pathological behaviors nor the by-product of male aggression, but instead appear to represent part of the female behavior repertoire in chimpanzees.
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http://www.economist.com/node/16422404
Chimpanzee behaviour
Killer instincts
Like humans, chimpanzees can engage in guerrilla warfare with their neighbours. As with humans, the prize is more land
Jun 24th 2010 | from PRINT EDITION
.PEOPLE are not alone in waging war. Their closest living cousins, chimpanzees, also slaughter their own kind—in brutal attacks that primatologists increasingly view as strategic, co-ordinated assaults rather than random acts of violence. But however tempting it is to see these battles through the lens of human warfare, the motives for chimp-on-chimp violence are poorly understood. In particular, researchers have long debated whether the apes fight for land, or for females.
A report just published in Current Biology may help to settle the question. The study it describes, led by John Mitani, of the University of Michigan in Ann Arbor, is the first to offer a detailed picture of organised conflict between chimpanzees. Drawing on a decade of observations in the field, it concludes that, as with human conflict, wars between chimpanzees are fuelled by territorial conquest.
Between 1999 and 2008 Dr Mitani and his colleagues shadowed a group of chimpanzees called the Ngogo, who live in the Kibale national park in Uganda. Most of the time, the Ngogo chimps were anything but model soldiers—squabbling, foraging and lolling about their domain. But on 114 occasions Dr Mitani’s colleague Sylvia Amsler watched large groups of males strike out on silent, single-file patrols to the fringes of their territory.
These forays often turned violent. All but one of the 18 fatal attacks Dr Amsler witnessed occurred during boundary patrols. In each case, males colluded to kill chimps from a neighbouring group.
The territorial imperative
To understand what motivated this violence, the researchers looked at which chimps were actually attacked. If the purpose of chimpanzee warfare were either rape or the abduction of mates, then the expectation would be that adult males would be the targets of lethal violence. On occasion, they were. But most victims were juveniles, and of both sexes.
Furthermore, chimpanzee mothers were often beaten as the raiders snatched and killed their offspring. Though these assaults on mothers were rarely lethal, patrolling chimps were clearly more likely to batter females than recruit them as mates, suggesting that other motives might drive their violent behaviour.
The researchers therefore asked whether geography offered a better explanation. Using the Global Positioning System to map patrol routes and attack locations, they saw that the Ngogo chimps’ reconnaissance fanned mainly beyond their north-eastern border, encroaching onto the land of a neighbouring group. Almost all of the killings occurred in this disputed territory, which sported particularly fine stands of the chimps’ favourite fruit-tree. By the time the study ended, the Ngogo group’s campaign had displaced its rivals completely, annexing the north-eastern lands and enlarging its range by 22%.
Though the territorial upgrade may eventually attract new mates, none of the displaced females has been spotted joining the Ngogo group. This suggests that real estate, not a tight mating market, is the true motive for chimp combat. Such motivation makes sense in the context of the discovery in 2004, by Jennifer Williams of the University of Minnesota, that larger territories enabled chimps in neighbouring Tanzania to produce more offspring. This provides an evolutionary incentive for the apes to expand their range—and its associated resources—by any means necessary.
Can chimpanzee skirmishes tell people anything about their own violent tendencies? One lesson, which may surprise cynics, is that humans are more peaceful than chimps. The rate of killing Dr Mitani reports is between one-and-a-half and five times that seen in human agricultural societies—and between five and 17 times higher than attrition due to warfare among hunter-gatherers, who could have less need to defend territory than farmers. (It is also, it must be acknowledged, higher than that reported for other chimpanzee communities, suggesting that the Ngogo troop may be exceptionally bellicose.) In the context of comparisons with humans, though, the most salient feature of chimpanzee combat may be its co-operative nature.
Chimps avoid single combat. To fight successfully, they must maintain complex, collaborative social networks—suggesting that only by bonding within groups can chimps engage in violence between such groups. This has big implications. It may be the ability to form bonds with strangers was forged by the demands of war. Thus, the human tendency to coalesce around abstract concepts such as religion or nation, which underpins civilisation, may well be an evolutionary legacy of a violent past. Signs of anything similar in a species that, albeit a close-ish relative, parted company from the line leading to humans at least 5m years ago are therefore interesting.
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http://www.economist.com/node/10278703
Recently, though, anthropologists have subtly revised the view that the invention of agriculture was a fall from grace. They have found the serpent in hunter-gatherer Eden, the savage in the noble savage. Maybe it was not an 80,000-year camping holiday after all.
In 2006 two Indian fishermen, in a drunken sleep aboard their little boat, drifted over the reef and fetched up on the shore of North Sentinel Island. They were promptly killed by the inhabitants. Their bodies are still there: the helicopter that went to collect them was driven away by a hail of arrows and spears. The Sentinelese do not welcome trespassers. Only very occasionally have they been lured down to the beach of their tiny island home by gifts of coconuts and only once or twice have they taken these gifts without sending a shower of arrows in return.
Several archaeologists and anthropologists now argue that violence was much more pervasive in hunter-gatherer society than in more recent eras. From the
!Kung in the Kalahari to the Inuit in the Arctic and the aborigines in Australia, two-thirds of modern hunter-gatherers are in a state of almost constant tribal warfare, and nearly 90% go to war at least once a year. War is a big word for dawn raids, skirmishes and lots of posturing, but death rates are high—usually around 25-30% of adult males die from homicide. The warfare death rate of 0.5% of the population per year that Lawrence Keeley of the University of Illinois calculates as typical of hunter-gatherer societies would equate to 2 billion people dying during the 20th century.
At first, anthropologists were inclined to think this a modern pathology. But it is increasingly looking as if it is the natural state. Richard Wrangham of Harvard University says that chimpanzees and human beings are the only animals in which males engage in co-operative and systematic homicidal raids. The death rate is similar in the two species. Steven LeBlanc, also of Harvard, says Rousseauian wishful thinking has led academics to overlook evidence of constant violence.Not so many women as men die in warfare, it is true. But that is because they are often the object of the fighting. To be abducted as a sexual prize was almost certainly a common female fate in hunter-gatherer society. Forget the Garden of Eden; think Mad Max.
Constant warfare was necessary to keep population density down to one person per square mile. Farmers can live at 100 times that density. Hunter-gatherers may have been so lithe and healthy because the weak were dead. The invention of agriculture and the advent of settled society merely swapped high mortality for high morbidity, allowing people some relief from chronic warfare so they could at least grind out an existence, rather than being ground out of existence altogether.
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GM:
a) If you have a chance, would you please post your relevant posts here on the Evolutionary Psychology/Biology thread as well? I am familiar with some of them, but others are new to me.
b) I will take a stab at offering an example: Eskimos. Also, if I have a chance I will check some resource materials (e.g. R. Wright's "Non-zero Sum, the logic of human destiny") concerning the Native Americans of the Northwest before the white man came.
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GM,
Taking a line from one of my favorite movies, "What we have here is a failure to communicate." In the state of nature, at least as I conceive it, it is every man for himself. This means that there are no formalized groups, no cultural mores, and no us vs. them. It more more me vs. "all y'all". In every instance that you described, Dutch vs. slaves, tribe vs. tribe, etc. there is one formalized group that has taken liberties with "the other." All this is a smaller version of war. England vs. France, US vs. Germany and the like.
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All of that said, the chimp article is really interesting. Thank you for sharing it.
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GM,
Taking a line from one of my favorite movies, "What we have here is a failure to communicate." In the state of nature, at least as I conceive it, it is every man for himself. This means that there are no formalized groups, no cultural mores, and no us vs. them. It more more me vs. "all y'all". In every instance that you described, Dutch vs. slaves, tribe vs. tribe, etc. there is one formalized group that has taken liberties with "the other." All this is a smaller version of war. England vs. France, US vs. Germany and the like.
Our bipedal, prehuman ancestors were slower and weaker than most anything else, especially the predators. Only working in groups could they survive. The same is true today. No man or woman is an island. We emerge from parents, are socialized (or not) and fuction (or not) within whatever culture/tribe/nation we find ourselves. We reflect both nature and nurture. Isolated humans don't tend to do well, either physically or mentally. Prison inmates that are segrigated from othes, tend to develop serious mental illnesses, even with no history of mental illness.
Survival experts can teach you how to survive until you make to a place where other humans are. Very few can teach you how to exist long term away from any human culture. A hunter-gatherer in the Amazon rainforest or the Highlands of New Guinea are experts at surviving in those environments, they still need their fellow humans for long term survival.
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The question of elected and unelected judges is very interesting, and more complicated than that sounds. For example, the Iowa vote was a form of impeachment by the voters. The new justices will still be appointed and confirmed by the state executive and legislative branches respectively (as I understand it). Urban legend here in Minnesota is that the best judges were picked by the wholly unqualified independent governor, Jesse the wrestler, because he did not have a pool of partisan, party, political paybacks to attend to and was able to select based only on merit. That being the exception rather the rule indicates that the ordinary process of appointment-confirmation is less than perfect and objective also.
The Des Moines register contemplates the question of how the ousters will affect the pool of potential new justices. http://www.desmoinesregister.com/article/20101120/NEWS/11200334/How-will-ousters-affect-pool-of-justice-applicants- My feeling is that of course it has an effect but the experience of being ousted puts you in private practice with increased pay and the credential of being a former supreme court justice. That is not all bad, so it seems to me that a good justice will still do what is right in their mind and not necessarily cling to power like a typical Washington politician.
The full faith and credit clause pointed out by bigdog is what makes these policy questions settled by such small numbers of people so huge in implication.
Regarding Stevens, thank you bigdog for conceding point 3) to me. (smiles!) For some reason I never see that point acknowledged in death penalty discussions. Important context of point 3) is that Stevens prefaced his 5 points with this: "To be reasonable, legislative imposition of death eligibility must be rooted in benefits for at least one of the five classes of persons affected by capital offenses." I will settle for one out of five and rest my case.
Clarifying my point on elitism, I only intended it as a negative when judging the benefits of the general public as per Stevens point 4). I certainly value choosing the finest minds and highest character for the people who will review the technical arguments of constitutional and case law for interpretation, though I often disagree with them.
Unequal application is a concern. I hadn't seen the argument before regarding elected/unelected judges. I see it made over black vs. white convicts and don't know what to make of it. What I see in the neighborhoods is how unfair it is that black people are disproportionately crime victims in black neighborhoods, not that the guilty are pursued or punished too harshly.
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http://www.washingtonpost.com/wp-dyn/content/article/2007/08/09/AR2007080901964.html
Study: Almost Half of Murder Victims Black
By Dan Eggen
Washington Post Staff Writer
Friday, August 10, 2007
Nearly half the people murdered in the United States each year are black, part of a persistent pattern in which African Americans are disproportionately victimized by violent crime, according to a new Justice Department study released yesterday.
The study by the Bureau of Justice Statistics also found that from 2001 to 2005, more than nine out of 10 black murder victims were killed by other blacks, and three out of four were slain with a gun. Blacks, who make up 13 percent of the population, were victims in 15 percent of nonfatal violent crimes.
The new findings underscore the enduring problem of crime that plagues many African American communities, even during a period when the incidence of violent crime dropped or held steady overall, according to criminologists and other experts.
Some experts said the study also illustrates that encounters with criminals are often more likely to turn deadly for black victims than for victims of other races, in part because black victims are more likely to be confronted with firearms.
"Black victimization is a real problem, and it's often black on black," said David A. Harris, a law professor at the University of Toledo who studies crime trends. "That aspect has to be brought into any attempt to address the crime problem, and the community itself must be called into the process."
The Justice study is primarily drawn from two sets of data: FBI homicide reports and the National Crime Victimization Survey, which attempts to measure the actual prevalence of crime through scientific polling. The Justice Department has not done a study on black victimization in more than a decade, but outside researchers have reached similar conclusions, officials said.
In 2005, the study found, blacks were victims of an estimated 8,000 homicides and 805,000 other violent crimes, including rape and aggravated assault.
The study found that black males were more likely to be crime victims than black females; that black murder victims tended to be younger than white or Hispanic homicide victims; and that blacks in poor or urban households were more likely to be victimized than those in higher-income or rural areas.
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Homicide Trends in the U.S.
Trends by race
Racial differences exist, with blacks disproportionately represented among homicide victims and offenders
In 2005, homicide victimization rates for blacks were 6 times higher than the rates for whites.
To view data, click on the chart.
http://bjs.ojp.usdoj.gov/content/homicide/race.cfm
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Bringing forward a question I posed a couple of months ago relating to one concept in law applyied to two different issues. Bigdog or anyone else, please point out where my logic fails.
Our progressive tax system allows and requires that a dollar of income is taxed differently depending on the how it is earned and the circumstances of the earner. It passes constitutional muster because the same formula applies to everyone, but it is explicitly sold to the voters as treating different classes of citizens differently: "these folks" can afford to pay more, "only the rich" will have their taxes raised. (Only the gay will have their marriages denied.)
Moving to gay marriage: Tradition marriage gives every adult the exact same right to marry one person of the opposite gender. That you have a different circumstance is no different (IMO) than an estate tax not applying to a poor person, a capital gain tax not applying to a person without a capital gain, corporate double taxation not applying to people without a corporation, food stamps not available to the well-fed, etc. Every person has the exact same right in America to marriage. Some such as single persons or gay couples are in different circumstances, not denied equal protection.
How do you strike that down without also striking down our bizarre system of endlessly targeted and intentionally selective taxation?
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You assume that there is a coherent logic equally applied. That's almost always a mistake. :-D
You raise a very good point, Doug. IMHO, the entire body of tax law needs to be dumped in favor of some coherent model that can be easily understood by the average citizen.
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GM,
Taking a line from one of my favorite movies, "What we have here is a failure to communicate." In the state of nature, at least as I conceive it, it is every man for himself. This means that there are no formalized groups, no cultural mores, and no us vs. them. It more more me vs. "all y'all". In every instance that you described, Dutch vs. slaves, tribe vs. tribe, etc. there is one formalized group that has taken liberties with "the other." All this is a smaller version of war. England vs. France, US vs. Germany and the like.
Our bipedal, prehuman ancestors were slower and weaker than most anything else, especially the predators. Only working in groups could they survive. The same is true today. No man or woman is an island. We emerge from parents, are socialized (or not) and fuction (or not) within whatever culture/tribe/nation we find ourselves. We reflect both nature and nurture. Isolated humans don't tend to do well, either physically or mentally. Prison inmates that are segrigated from othes, tend to develop serious mental illnesses, even with no history of mental illness.
Survival experts can teach you how to survive until you make to a place where other humans are. Very few can teach you how to exist long term away from any human culture. A hunter-gatherer in the Amazon rainforest or the Highlands of New Guinea are experts at surviving in those environments, they still need their fellow humans for long term survival.
I agree. But that means that the State of Nature is a construct. It was used by philosophers to construct the need for the constructed social contract.
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The question of elected and unelected judges is very interesting, and more complicated than that sounds. For example, the Iowa vote was a form of impeachment by the voters. The new justices will still be appointed and confirmed by the state executive and legislative branches respectively (as I understand it). Urban legend here in Minnesota is that the best judges were picked by the wholly unqualified independent governor, Jesse the wrestler, because he did not have a pool of partisan, party, political paybacks to attend to and was able to select based only on merit. That being the exception rather the rule indicates that the ordinary process of appointment-confirmation is less than perfect and objective also.
The Des Moines register contemplates the question of how the ousters will affect the pool of potential new justices. http://www.desmoinesregister.com/article/20101120/NEWS/11200334/How-will-ousters-affect-pool-of-justice-applicants- My feeling is that of course it has an effect but the experience of being ousted puts you in private practice with increased pay and the credential of being a former supreme court justice. That is not all bad, so it seems to me that a good justice will still do what is right in their mind and not necessarily cling to power like a typical Washington politician.
The full faith and credit clause pointed out by bigdog is what makes these policy questions settled by such small numbers of people so huge in implication.
Regarding Stevens, thank you bigdog for conceding point 3) to me. (smiles!) For some reason I never see that point acknowledged in death penalty discussions. Important context of point 3) is that Stevens prefaced his 5 points with this: "To be reasonable, legislative imposition of death eligibility must be rooted in benefits for at least one of the five classes of persons affected by capital offenses." I will settle for one out of five and rest my case.
Clarifying my point on elitism, I only intended it as a negative when judging the benefits of the general public as per Stevens point 4). I certainly value choosing the finest minds and highest character for the people who will review the technical arguments of constitutional and case law for interpretation, though I often disagree with them.
Unequal application is a concern. I hadn't seen the argument before regarding elected/unelected judges. I see it made over black vs. white convicts and don't know what to make of it. What I see in the neighborhoods is how unfair it is that black people are disproportionately crime victims in black neighborhoods, not that the guilty are pursued or punished too harshly.
You are a thoughtful chap, DougMacG. Please note that only mostly conceded the point to you, and raised another potential issue. I agree with you on the importance of the Full Faith and Credit clause. Illinois has OK'd civil unions, in the legislature. Interesting, given our current train of discussion.
There is certainly no perfect method of judicial selection. There are issues that one can find in any selection process. I think it is a good thing that we have 51 (or more, really) judicial systems within the United States. It allows the states to be more mindful of the needs of their residents. And, yes, I just made a (pseudo) states rights argument. I do like the states as "laboratories of democracy."
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Parsing the deeply entwined threads of nature and nurture is a difficult task that is far from completed by the social sciences, especially because today's social sciences tend to be heavy on the "social" (Immersed in the internal politics of academia and it's ideological allegiances) and very light on the science.
Not matter the cultural software, we are still rooted in the biological hardware and it's evolutionary legacies inherent in that structure. In turn, how we as humans organize ourselves and structure our societies do not emerge from a vacuum. Human had rules, customs and taboos and methods for enforcing the models of behavior long before someone bothered to chip the Code of Hammurabi onto a stone tablet. We, as a species are dependent on our fellow humans for our survival as individuals and as a collective. As a result of this dynamic, there is a feedback loop between the group and the individual. Call it a social contract or use another term if you wish. It's a real phenomena, no matter what term is used to describe it.
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Despite being recommened to me by a social scientist (and we know how those people can be), here is an interesting blog related to the states legal challenges to the Health Care Bill.
http://acalitigationblog.blogspot.com/
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Plenty of coverage everywhere, see blog linked by Bigdog in the previous post on this thread.
Seems to me this makes it more likely it will rise to the Supreme Court, though it could stop first in the 4th District as other challenges proceed elsewhere. Instead of this crucial question being decided by one conservative judge in Virginia, it will likely be decided by one bizarre, unpredictable judge in Washington, Anthony Kennedy.
The Obama administration says the mandate is no different than a tax. Obama also went on national television a year ago during the heated policy debates to tell us this is not a tax. Go figure.
Minds smarter than mine will tell you how this is merely a logical extension of the commerce clause or the income tax amendment. But the framers didn't envision a healthcare mandate. They envisioned future desires to expand federal government powers and put in a very specific AMENDMENT CLAUSE so people later could easily (or not so easily) expand the powers to those needed later that they didn't envision or enumerate a couple of hundred years ago.
Try this at home, fill in the blank: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are ... what?? .................................................................
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http://online.wsj.com/article/SB10001424052748703727804576017672495623838.html
December 14, 2010
ObamaCare Loses in Court
A victory for liberty and the Constitution in Virginia.
Only a few months ago, the White House and its allies on the legal left dismissed the constitutional challenges to ObamaCare as frivolous, futile and politically motived. So much for that. Yesterday, a federal district court judge in Virginia ruled that the health law breaches the Constitution's limits on government power.
In a careful 42-page ruling, Judge Henry Hudson declared that ObamaCare's core enforcement mechanism known as the individual mandate—the regulation that requires everyone to purchase health insurance or else pay a penalty—exceeds Congress's authority to regulate the lives of Americans.
"The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision [the individual mandate] would invite unbridled exercise of federal police powers," Judge Hudson writes. "At its core, this dispute is not simply about regulating the business of insurance—or crafting a scheme of universal health insurance coverage—it's about an individual's right to choose to participate."
So the issue is joined, and no doubt with historic consequences for American liberty. For most of the last century, the U.S. Supreme Court interpreted the Constitution's Commerce Clause as so elastic as to allow any regulation desired by a Congressional majority. Only with the William Rehnquist Court did the Justices begin to rediscover that the Commerce Clause has some limits, as in the Lopez (1995) and Morrison (2000) cases.
The courts up through the Supremes will now decide if government can order individuals to buy a private product or be penalized for not doing so. If government can punish citizens for in essence doing nothing, then what is left of the core Constitutional principle of limited and enumerated government powers?
Judge Hudson's opinion is particularly valuable because it dispatches the White House's carousel of rationalizations for its unprecedented intrusions. The Justice Department argued that the mandate is justified by the Commerce Clause because the decision not to purchase insurance has a substantial effect on interstate commerce because everybody needs medical care eventually. And if not that, then it's permissible under the broader taxing power for the general welfare; and if not that, then it's viable under the Necessary and Proper clause; and if not that, well, it's needed to make the overall regulatory scheme function.
But as Judge Hudson argues, the nut of the case is the Commerce Clause. Justice can't now claim that the mandate is "really" a tax when the bill itself imposes what it calls a "penalty" for failing to buy insurance and says the power to impose the mandate is vested in interstate commerce. Recall that President Obama went on national television during the ObamaCare debate to angrily assert that the mandate "is absolutely not a tax increase."
Moreover, Judge Hudson says that no court has ever "extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market."
Liberals are attacking Judge Hudson because he was appointed by George W. Bush, but his ruling is relatively narrow. He didn't strike down the rest of ObamaCare even though it lacked a severability clause, and he didn't enjoin the law's implementation pending appeal. His opinion also doesn't touch Virginia Attorney General Ken Cuccinelli's long-shot claim that his state's "health freedom" law can nullify an act of Congress. In fact, federal laws that are constitutional are supreme under the 10th Amendment.
Yesterday liberals were crowing that even if the mandate is eventually declared illegal, it's no big deal because the rest of ObamaCare's new system would remain intact. Yet they've argued for years that the mandate is essential to health reform, because the mandate is at the heart of the regulatory machine. ObamaCare without a mandate would mean individuals wouldn't have to pay into a system until they were sick, driving up costs even faster and ruining what's left of health insurance markets.
While Judge Hudson's ruling is the first to declare part of the law unconstitutional, more than 20 state attorneys general and the National Federation of Independent Business are also suing in Florida. Oral arguments will be heard on Thursday in that case, which we think is the strongest constitutional challenge to the law.
As the Virginia case shows, ObamaCare really does stretch the Commerce Clause to the breaking point. The core issue is whether the federal government can order individuals to do anything the political class decides it wants them to do. The stakes couldn't be higher for our constitutional order.
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This subject belongs in the Constitutional Law thread.
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http://online.wsj.com/article/SB10001424052748703493504576007774155273928.html?mod=djem_jiewr_BL_domainid
Assembling the Global Baby
By TAMARA AUDI and ARLENE CHANG
In a hospital room on the Greek island of Crete with views of a sapphire sea lapping at ancient fortress walls, a Bulgarian woman plans to deliver a baby whose biological mother is an anonymous European egg donor, whose father is Italian, and whose birth is being orchestrated from Los Angeles.
She won't be keeping the child. The parents-to-be—an infertile Italian woman and her husband (who provided the sperm)—will take custody of the baby this summer, on the day of birth.
The birth mother is Katia Antonova, a surrogate. She emigrated to Greece from Bulgaria and is a waitress with a husband and three children of her own. She will use the money from her surrogacy to send at least one of her own children to university.
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http://www.bbc.co.uk/iplayer/episode/p00c9yfb/The_Monday_Documentary_Power_And_The_Judges_Part_One/
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Some details in this editorial that are often left out in some right wing commentary:
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Republicans have a long history of favoring small government except when it comes to surveillance and security, at which point civil liberties take a back seat. Last week, however, 26 Republicans in the House demonstrated a remarkable consistency by joining 122 Democrats to prevent the extension of three questionable provisions of the Patriot Act, the post-9/11 law created during the Bush administration.
USA Patriot ActThe vote splashed some cold water on the House Republican leadership, which had been so confident that it raised the extension under fast-track rules that require a two-thirds majority. The leadership is planning to bring it back this week under the normal rules. It is almost certain to pass and be sent to the Senate.
Nonetheless, the concerns that briefly brought together liberals, Tea Party members and longtime centrists from both parties should send a message to the White House and the Senate. The provisions of the Patriot Act should be carefully re-examined before being hastily reauthorized year after year. The Tea Party-backed congressman Justin Amash of Michigan was right to say that some raise serious concerns about violating the ban on unreasonable searches and seizures.
Three provisions in the act are set to expire on Feb. 28, and would be renewed under the House bill, supported by the Obama administration, through December.
One would allow a roving wiretap on a terror suspect to monitor his conversations as he moves from phone to phone. That can be a useful tool, but the authorization is so broad that the government does not even have to specify the suspect’s name to get a warrant. The failure to provide a more narrow identification of the suspect is too lax and could lead to abuse.
Another expiring provision has long raised serious civil liberties concerns, allowing the government to examine library and bookstore records of suspects, along with hard drives, tax documents and gun records. Investigators are not required to show probable cause that the material is related to a terrorist investigation.
The third provision, allowing surveillance of “lone wolf” suspects who may not be tied to recognized terror organizations, is also overly broad but has never been used. Rather than renew it without debate, the government should explain whether it is really necessary.
The extensions will probably pass the House this week — though leaders do not plan to give anyone a chance to amend them — and go to the Senate, which should provide another opportunity for reconsideration. Senator Patrick Leahy of Vermont, the Judiciary Committee chairman, has introduced a bill that would add several safeguards to the act, most notably the phasing out of “national security letters,” which the F.B.I. has used to obtain evidence without a court order. These letters have been subject to widespread misuse and have never received proper oversight.
Unfortunately, the same bill that would bring the letters under control would extend the three expiring provisions in the Patriot Act through 2013. It is a much better measure, however, than a bill by Senator Dianne Feinstein that would extend the provisions for three more years without the new safeguards, or one by Senator Mitch McConnell that would make the three provisions permanent. Congress should not miss an opportunity to wield some oversight on this issue and determine whether the government could achieve its goals with less sweeping surveillance powers.
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One would allow a roving wiretap on a terror suspect to monitor his conversations as he moves from phone to phone. That can be a useful tool, but the authorization is so broad that the government does not even have to specify the suspect’s name to get a warrant. The failure to provide a more narrow identification of the suspect is too lax and could lead to abuse.
**Anything can potentially lead to abuses. Ignorance of criminal investigations exemplified by this editorial is typical of attack on the PATRIOT act. Anyone know what a "John Doe" warrant is?
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http://www.nytimes.com/2011/02/20/opinion/20sun2.html?_r=1&nl=todaysheadlines&emc=tha211
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A friend's take on judicial selection:
http://www.washingtonpost.com/opinions/why-we-should-keep-judicial-elections/2011/05/26/AGt08HCH_print.html
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Thanks for this BD. This is a subject not often addressed; nice treatment here.
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He is also the coauthor of a good book on the subject, with Melinda Gann Hall.
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Likewise, that is a nice article. Judges here generally run unopposed and win with 99+% of the vote, but I agree that having a mechanism available to expose and remove them short of impeachment tends to keep them on track doing the best job they can.
I also like that BD has friends out there opposing both the ABA and the work of Sandra Day O'Connor, no matter the issue. :-)
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GM - I would be curious for your comment and insight. It seems to me to be perfectly legal to film an arrest.
A form of checks and balances.
The woman obviously had no weapon nor was she a physical threat to the officers.
http://www.cnn.com/video/#/video/crime/2011/06/25/nr.woman.arrested.cnn?hpt=hp_t2
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"It seems to me to be perfectly legal to film an arrest."
I think there are local laws against that. We need to repeal those laws.
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I think if you are in a public place, you have no reasonable expectation of privacy. If you are a law enforcement officer, you should expect to be the subject of public interest and documentation and conduct yourself accordingly. There shouldn't be any laws forbidding Joe or Jane citizen from documenting police action. It is a form of checks and balances.
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Amen!!!
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Sir Robert Peel's Nine Principles
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The basic mission for which the police exist is to prevent crime and disorder.
The ability of the police to perform their duties is dependent upon public approval of police actions.
Police must secure the willing co-operation of the public in voluntary observance of the law to be able to secure and maintain the respect of the public.
The degree of co-operation of the public that can be secured diminishes proportionately to the necessity of the use of physical force.
Police seek and preserve public favour not by catering to public opinion but by constantly demonstrating absolute impartial service to the law.
Police use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice and warning is found to be insufficient.
Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.
Police should always direct their action strictly towards their functions and never appear to usurp the powers of the judiciary.
The test of police efficiency is the absence of crime and disorder, not the visible evidence of police action in dealing with it.
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That should be posted in every police station!
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I'm the resident liberal here; make love not war. :-)
So why, under the First and Fourteenth Amendments is CA allowed to prohibit minors to buy Playboy Magazine,
but it is not ban violent games?
http://www.latimes.com/news/nationworld/nation/la-na-court-games-20110628,0,6836552.story
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GM, I would love to see that posted in the Police-Civilian interaction thread on the Martial Arts Forum.
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For the past century, the imperial power of the law seemed unstoppable, as legislation and litigation reached into every area of life. But now the law has met its match. Technology raises issues so quickly and unpredictably that judges are reduced to King Canutes, trying to stop the flow of ocean tides with their bare hands.
Consider two similar cases based on rapid changes in technology occurring a century apart. Both dealt with "hot news," a legal doctrine that determines who owns news for how long. Long dormant, the issue has heated up as services such as Google and aggregators such as Huffington Post drew large audiences through summaries of original reporting by news organizations.
These cases were hard calls for judges in 1918 and again in the case decided last week. Here are the facts in the earlier case, International News Service v. Associated Press:
The International News Service was founded by William Randolph Hearst as an alternative to the Associated Press. Like his newspapers, INS opposed America's entry into World War I. British military censors tired of its exaggerated reporting (one headline read, "Zeppelins Set London Ablaze!") and banned Hearst's newswire from using the undersea cable that linked to telegraphs in the U.S. that delivered reports to newspapers.
Hearst's newswire responded by copying AP stories, sometimes obtained by bribing AP employees, and sending the reports to its member newspapers as its own. "The distribution of news matter throughout the country is principally from east to west," Supreme Court Justice Mahlon Pitney observed, "and, since in speed the telegraph and telephone easily outstrip the rotation of the earth, it is a simple matter for defendant to take complainant's news from bulletins or early editions of complainant's members in the eastern cities and, at the mere cost of telegraphic transmission, cause it to be published in western papers issued at least as early as those served by complainant."
The news itself, as opposed to the words in which it is written, is not subject to copyright. But the court found that INS had misappropriated a "quasi-property right" by "endeavoring to reap where it has not sown, and by disposing of it to newspapers that are competitors of complainant's members . . . appropriating to itself the harvest."
View Full Image
Getty Images/Imagezoo
.Last week's case, Barclays Capital v. Theflyonthewall.com, turned out differently. The website uses the Internet to redistribute information the way Hearst's newswire used the telegraph. The plaintiffs in the case, which include Merrill Lynch and Morgan Stanley, invest in research about companies and markets and then share their market-moving trading recommendations with their biggest trading customers. They make the recommendations public only later, after funding the research through trading commissions.
Theflyonthewall.com undermined this system by reporting these recommendations quickly after their distribution to big investors; it's hard to keep secrets these days. A trial judge had sided with the banks and ordered the site to wait until 30 minutes after the opening of the stock exchange to republish the banks' buy-sell-hold recommendations, giving the banks' customers time to trade.
But the Second U.S. Circuit Court of Appeals ruled last week that the website could continue its work. Unlike in the Hearst newswire case, Theflyonthewall.com is not free riding when it collects and distributes news about banks' research. "The firms are making the news," Judge Robert Sack wrote. "Fly, despite the firms' understandable desire to protect their business model, is breaking it."
Judge Sack knows the news industry well after representing Dow Jones and other media companies when he was in private practice. He is philosophical about the power of judges to stem the tide of technology, even when there's unfairness. "The adoption of new technology that injures or destroys present business models is commonplace," he writes.
There can't be laws against using technology to spread news. Justice Louis Brandeis wrote as much in his 1918 dissent in International News Service. "With the increasing complexity of society, the public interest tends to become omnipresent, and the problems presented by new demands for justice cease to be simple. Then the creation or recognition by courts of a new private right may work serious injury to the general public unless the boundaries of the right are definitely established and widely guarded."
But just because the law can't control how news spreads does not make technology a pure good. Google and Twitter filed a brief in Theflyonthewall, warning: "Hot news becomes cold in a nanosecond in the modern world." They don't want restriction on their business practices. But as in the cases of the not-so-innocent Hearst newswire and Theflyonthewall.com, Internet aggregators profit from the work of others as they undermine their business models.
Judges are right to stand aside to let the tide of technology flow freely. It's only through more innovation, unfettered by new legal constraints, that technology will deliver new ways to fund original reporting, whether by journalists or equity analysts.
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By CLIFFORD WINSTON
AND ROBERT W. CRANDALL
The job market is not looking bright for Americans of all walks of life, even Ivy League college graduates and those with advanced degrees. For example, a new wave of law school graduates has just taken state bar examinations, which they must pass to obtain a license to practice law. But after accumulating as much as $150,000 in law school debt (likely on top of undergraduate debt), many of those test-takers are concerned that jobs in their field are vanishing.
Is there really an excess supply of lawyers? The Senate Judiciary Committee is investigating the subject while the New York Law School and the Thomas Cooley Law School in Michigan are being hit with class action suits claiming that they fraudulently inflated employment statistics to lure prospective students. But the solution proffered by many in the legal community—to put new limits on entry into the legal profession—is not the answer and will make the problem worse over the long term.
The reality is that many more people could offer various forms of legal services today at far lower prices if the American Bar Association (ABA) did not artificially restrict the number of lawyers through its accreditation of law schools—most states require individuals to graduate from such a school to take their bar exam—and by inducing states to bar legal services by non-lawyer-owned entities. It would be better to deregulate the provision of legal services. This would lower prices for clients and lead to more jobs.
Occupational licensing limits competition and raises the cost of legal services. But those higher costs are not justified when the services provided by lawyers do not require three years of law school and passing a particular test. One example is LegalZoom.com, an online company which sells simple legal documents—documents that should not require pricey lawyers to prepare—like do-it-yourself wills, uncontested divorce documents, patent applications and the like.
The competition supplied by new legal-service providers, who may or may not have some type of law degree and may even work for a non-lawyer-owned firm, will not only lead to aggressive price competition but also a search for more efficient methods to serve clients.
Every other U.S. industry that has been deregulated, from trucking to telephones, has lowered prices for consumers without sacrificing quality. For example, most regulated large airlines used to operate with large numbers of empty seats, particularly on longer routes. Once deregulation allowed Southwest Airlines, a smaller regional carrier, and other new carriers to offer service on any route, airline fares declined dramatically and the industry operated with far fewer empty seats and more employees. Deregulation of wireless, cellular telephone services and the entry of new carriers has led to the lowest wireless rates in the developed world and stimulated huge expenditures and associated employment in constructing new networks.
Entry by new firms—sometimes from other industries—spurs innovation. The legal industry will be no different. Ford, Honda and Toyota moved into motor vehicle production from bicycle, motorcycle and farm-equipment production, respectively. More recently, Apple moved from computers into mobile telephones (the iPhone), putting enormous competitive pressure on industry giants such as Nokia, Motorola and Research in Motion (Blackberry). The resulting innovations improved quality and lowered prices while also expanding employment.
Allowing accounting firms, management consulting firms, insurance agencies, investment banks and other entities to offer legal services would undoubtedly generate innovations in such services and would force existing law firms to change their way of doing business and to lower prices.
Entry deregulation would also expand individuals' options for preparing for a career in legal services, including attending vocational and online schools and taking apprenticeships without acquiring formal legal education. Established law schools would face pressure to reduce tuition and shorten the time to obtain a degree, which would substantially reduce the debt incurred by those who choose to go to those schools.
Supporters of occupational licensing to restrict the number of lawyers in the U.S. are wrong to assert that deregulation would unleash a wave of unscrupulous or incompetent new entrants into the profession. Large companies seeking advice in complex financial deals would still look to established lawyers, most of whom would probably be trained at traditional law schools but may work for a corporation instead of a law firm.
Others, seeking simpler legal services such as a simple divorce or will, would have an expanded choice of legal-service providers, which they would choose only after consulting the Internet or some other modern channel of information about a provider's track record. Just as the medical field has created physician assistants to deal with less serious cases, the legal profession can delegate simple tasks.
The track record of deregulation naysayers is hardly impressive—after all, some predicted in 1977 that airline deregulation would lead to a United Airlines monopoly. And while we cannot predict all the effects of legal services deregulation, we are confident that those services would be more responsive to consumers and that there would be more jobs in the legal profession.
Mr. Winston is a senior fellow at the Brookings Institution, where Mr. Crandall is a nonresident senior fellow in the Economic Studies Program. They are co-authors, along with Vikram Maheshri, of "First Thing We Do, Let's Deregulate All the Lawyers" (2011, Brookings Press).
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http://www.nytimes.com/2012/03/20/business/for-lsat-sharp-drop-in-popularity-for-second-year.html?nl=todaysheadlines&emc=edit_th_20120320
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is this unprecedented?
« Reply #876 on: Today at 02:12:44 PM »
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http://www.cbsnews.com/8301-504564_162-57408827-504564/appeals-court-fires-back-at-obamas-comments-on-health-care-case/
Appeals court fires back at Obama's comments on health care case
In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.
The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president's comments yesterday about the Supreme Court's review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."
Overturning a law of course would not be unprecedented -- since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise -- despite the president's remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.
The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.
The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.
Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.
Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."
I've reached out to the White House for comment, and will update when we have more information.
CBSNews.com Special Report: Health Care Reform
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BD:
Before she was a Justice, Kagan worked on the passage of Obamacare. My understanding is that this means she should recuse herself from the Obamacare decision. She has not.
What are your thoughts on this?
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Yes, I also am interested to know BD latest thoughts on this. It did seem Kagan stayed somewhat in the background on questioning. My understanding is that she largely denies the involvement Crafty suggests and it is her own decision to make on recusal. OTOH, critics want to know details of a 2 month Nixon-like gap in her govt email record ot know her involvement and dishonesty IMHO would set up a political case for impeachment - that I'm sure will never happen...
Remember Thomas' critics were also strong on recusal for his wife's political involvement.
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Recusal is completely up to the justice to determine. There have been many recent examples in which Democrats/liberals called for a conservative justice to recuse himself. DMG notes but one. There were calls for Scalia to recuse himself when his hunting partner, VP Cheney, had a case before the court about extended executive privilege to the vice president. According to former Chief Rehnquist, "There is no formal procedure for court review of the decision of a justice in an individual case," Rehnquist said in a letter to Democratic Sens. Patrick J. Leahy of Vermont and Joe Lieberman of Connecticut. "That is so because it has long been settled that each justice must decide such a question for himself" (see http://articles.latimes.com/2004/jan/27/nation/na-duck27 for citation). In the end, unless there is a written rule, it is up to the justice to decide. While I sometimes disagree vehemently with justices' decisions in this regard, I like it being up to the justice. By the way, the decision in Marbury v. Madison, which seems to be getting a good deal of reading in the wake of the president's comments about the USSC ACA case, is a very fine example of when recusal should have occurred.
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Understood.
I'd like to ask you to take it a step further.
SHOULD Kagan have recused herself?
Would an appellate or trial judge with similar connection to a case have to recuse?
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And the letter:
http://legaltimes.typepad.com/files/doj_letter_smith.pdf
is this unprecedented?
« Reply #876 on: Today at 02:12:44 PM »
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http://www.cbsnews.com/8301-504564_162-57408827-504564/appeals-court-fires-back-at-obamas-comments-on-health-care-case/
Appeals court fires back at Obama's comments on health care case
In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.
The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president's comments yesterday about the Supreme Court's review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."
Overturning a law of course would not be unprecedented -- since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise -- despite the president's remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.
The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.
The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.
Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.
Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."
I've reached out to the White House for comment, and will update when we have more information.
CBSNews.com Special Report: Health Care Reform
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Probably, at least due to the appearences. And, yes, those matter: "Two sections of Title 28 of the United States Code (the Judicial Code) provide standards for judicial disqualification or recusal. Section 455, captioned "Disqualification of justice, judge, or magistrate judge," provides that a federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." (citation below)
However, this http://en.wikipedia.org/wiki/Judicial_disqualification discusses the history of recusals, and offers one (and the implication) that I had not heard of.
Understood.
I'd like to ask you to take it a step further.
SHOULD Kagan have recused herself?
Would an appellate or trial judge with similar connection to a case have to recuse?
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http://www.usatoday.com/news/opinion/forum/story/2012-04-02/supreme-court-obamacare-kennedy/53953470/1
"Justice Anthony Kennedy is, in a sense, the king of the United States of America. As the deciding vote on the U.S. Supreme Court in dozens of important cases where the liberals and conservatives are evenly divided, he has become, in effect, a jurisprudential monarch (hence columnist Mark Steyn's nickname for him, "the Sultan of Swing"). He has been the final word on everything from the 2000 Bush-Gore presidential election to partial-birth abortion and terrorist detention. And now he will, in all likelihood, decide the constitutionality of the Patient Protection and Affordable Care Act— aka ObamaCare."
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http://www.nytimes.com/2012/04/04/opinion/dowd-men-in-black.html
"How dare President Obama brush back the Supreme Court like that?
Has this former constitutional law instructor no respect for our venerable system of checks and balances?
Nah. And why should he?
This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once it gives the last word, is well on its way to becoming one of the most divisive in modern American history."
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http://www.breitbart.com/Big-Government/2012/04/03/The-Vetting-Incorrect-Lochner-Reference-Shows-Derrick-Bells-Influence-on-Obama
The Vetting - Lochner Reference Shows Bell's Continuing Influence on Obama
by Joel B. Pollak
In continuing his attack on the Supreme Court on Tuesday, President Barack Obama made a mistaken reference to the Lochner decision--an error that suggests just how deeply Derrick Bell affected his thinking about the Court and the Constitution.
James Taranto of the Wall Street Journal noted that Obama, facing questions from journalists, had cited the case of Lochner v. New York (1905) as the last time the Supreme Court had overturned an economic law passed by Congress:
Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner, right? So we're going back to the '30s, pre-New Deal.
Obama was wrong on three counts: Lochner was not decided in the 1930s; it was not the last time an economic law was overturned; and it involved a state law, not a federal one.
But Obama's interpretation of Lochner is an interesting one, and points directly to the influence of Derrick Bell and his radical Critical Race Theory approach to constitutional jurisprudence.
Law students are typically taught about Lochner as a cautionary tale, a fable about the evils of a conservative judiciary determined to strike down economic legislation, allegedly to protect entrenched interests.
The dissenting opinion of Justice Oliver Wendell Holmes, Jr., is often cited--in particular, his declaration that the Constitution does not enshrine laissez faire economics or "Mr. Herbert Spencer's Social Statics." But law professors often leave out Holmes's full statement, in which he also says the Constitution does not embody economic "paternalism," either.
The true context of Lochner was not a judicial system determined to defend the rich, but one determined to defend the freedom of contract--which, in the post-Civil War era, was felt to be a necessary corrective to laws and decisions that had protected slavery.
The Supreme Court of the New Deal era, after pressure from President Franklin Delano Roosevelt, eventually abandoned Lochner and granted the federal government far greater power to regulate economic activity.
For left-wing legal pundits, like CNN's Jeffrey Toobin, that switch--following presidential bullying--was enough to establish that "national economic problems require national solutions," and ought to have paved the way for Obamacare.
This was an opinion seconded by Derrick Bell. For Bell, the Lochner case was particularly important. In the same 1984 speech in which he elucidated views on the Warren Court that Obama echoed years later, Bell spoke about the Lochner decision in detail as the last gasp of conservatism -- a conservatism, he does not bother to add, that must die an ignominious death:
The deep depression of the 1930s brought an end to the Lochner era, a 50 year period when the Supreme Court and much of the country espoused substantive due process and, often enough, summary invalidity for any government measure intended to aid the poor or alleviate the worst abuses of big business. It required the perspective provided by the country's economic troubles for the realization to sink in that the right of contract and the protection of property rights would be meaningless under anarchy...
The Court decided that the error of the Lochner era was its involvement in economic arrangements, and it promptly withdrew Fourteenth Amendment protection from those claiming economic-based discrimination at the hands of the state....
For Bell, the Lochner case was important because it represented the last gasp of conservative jurisprudence.
It is noteworthy, then, that Obama went straight to Lochner in looking for a Supreme Court precedent overturning an economic law, and that he thought it had been decided more recently than 1905.
Just as Obama used Bell's legal writings to shape his students' understanding of the Constitution, so they continue to shape his own.
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http://usnews.msnbc.msn.com/_news/2012/05/08/11585227-president-obama-stingy-on-pardons-says-clemency-expert?lite
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http://www.nytimes.com/2012/09/16/business/in-prosecutors-debt-collectors-find-a-partner.html?nl=todaysheadlines&emc=edit_th_20120916
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A Liberal Who Preached Restraint
In his letters, as on the bench, Judge Learned Hand argued against judicial activism. .
By ADAM J. WHITE
If modern constitutional law has a bedrock rule, it is this: Brown v. Board of Education was correctly decided. To argue, even to imply, that the Supreme Court erred when it ended school segregation in 1954 is to exile oneself from respectable constitutional debate. "Such is the moral authority of Brown," constitutional scholar Michael McConnell wrote in 1995, "that if any particular theory does not produce the conclusion that Brown was correctly decided, the theory is seriously discredited."
Only one jurist has condemned Brown without losing his reputation, and he accomplished that feat only because he had established himself as one of the greatest judges in American history. In 1958, near the end of his half-century of service on the federal bench, New York's Judge Learned Hand used a Harvard lecture series to criticize what he saw as the Supreme Court's unprincipled judicial activism in desegregating the schools. Yet just three years later, no less a civil-rights champion than Bobby Kennedy would remark, upon Hand's death, that "he was one of the great legal minds of our history, ranking with John Marshall and Oliver Wendell Holmes."
Judge Hand rejected Brown not in spite of his progressive values but because of them. That is the major lesson imparted by "Reason and Imagination," a collection of Hand's selected correspondence edited by Constance Jordan (a retired English professor and Hand's granddaughter). The book traces Hand's intellectual journey through the words of Hand himself and those of his correspondents, especially his friends Felix Frankfurter and Walter Lippmann. It becomes clear, over the course of these letters, that the views that propelled Hand to acclaim in the first half of his career were also those that, retained with increasing rigidity and even bitterness, put him at odds with the defining legal decision of his lifetime.
Learned Hand was born in Albany, N.Y., in 1872. From his father, a lawyer, he inherited a profession; from his mother, Lydia Learned, he received his memorable name. "Learned" was, in fact, his middle name; born Billings Hand, he dropped his given name in his 20s. He studied philosophy and law at Harvard, graduated in 1896 and returned to Albany to practice law. Like his idol, Oliver Wendell Holmes Jr., Hand would find little fulfillment in the practice of law; unlike Holmes, Hand sought refuge in politics. Moving to New York in 1902 in pursuit of an interesting caseload, he soon became enamored of progressive Republican politics.
In one of the first letters presented by Ms. Jordan, a note to his cousin Augustus Hand (a future colleague on the U.S. Court of Appeals for the Second Circuit), Hand rejected the "doctrinaire individualism" of his Democratic family and embraced the view "that in a vast multitude of cases the State must and should regulate the conduct of individuals for their own welfare and modify the contractual relations which they assume towards one another."
Hand would meet Teddy Roosevelt before TR became governor; he would befriend the progressive movement's leading voice, Herbert Croly, not long after. The two affiliations, it could be said, helped to change American history. By sending TR an advance copy of Croly's "The Promise of American Life," Hand introduced TR to the "New Nationalism" that would define TR's post-presidential political life, leading TR to re-enter politics in 1912, stripping the White House from William Taft and the Republicans, and handing it to Woodrow Wilson and the Democrats. Hand would also help Croly found the New Republic magazine, to which he contributed unsigned pieces. Bored with legal practice, he secured an appointment to Manhattan's U.S. District Court for the Southern District of New York.
The legal philosophy that Hand employed as a judge, and that he extolled in his widely read essays, was the judicial restraint preached by the progressive reformers of Hand's youth. Just weeks after Hand entered Harvard Law School, the law review published James Bradley Thayer's "The Origin and Scope of the American Doctrine of Constitutional Law," an article that guided Hand's lifelong judicial philosophy.
In an era dominated by the Supreme Court's nullification of state laws concerning public health, safety and labor, Thayer argued that the courts should defer to state legislatures and uphold state laws—that is, progressive reforms of state laws—unless the laws' unconstitutionality was "so clear that it is not open to rational question." Because the people's government must respond to "great, complex, ever-unfolding exigencies," the courts must stay their hand, Thayer said, lest they take on the power of an unelected super-legislature.
Hand's debt to Thayer is reflected in Ms. Jordan's choice, to begin the book, of a letter from Hand to "My dear Mr. Thayer" a year after Hand graduated from Harvard. Hand later took up Thayer's theme in a 1911 letter to Frankfurter: The "stand-patters," he wrote, ". . . want to put the whole weight of government on nine elderly gentlemen at Washington." Hand's own belief was that the court "ought not to exercise [the power of judicial review] at all." Instead, as he wrote in a letter to Frankfurter 40 years later, a judge applying a statute should try to "imagine" what outcome the original legislators would have intended. (Hence Ms. Jordan's choice of book title.)
Early in his career, when his progressive political preferences enjoyed wide public support, Hand was a proud democrat, in the small-d sense: Whatever the flaws of the vox populi, legislatures were "the most capable engine of government." Over time his version of progressivism would lead him to shift his political allegiance from the Republican Party to FDR. Still, he continued to defend judicial restraint, not activism, out of a suspicion of the judiciary's elitist prejudices. He warned a correspondent that "judges drawn from one economic class feel free to make the law on their own 'hunches,' and those hunches have corresponded to the unconscious prejudices of their class."
Because Judge Hand had quickly risen to prominence in progressive circles, many hoped that he would rise all the way to the Supreme Court. But in 1930 President Herbert Hoover passed him by for an open seat. It was the closest Hand would come to the high court. Hand had played down his prospects: "The chances are so remote," he told Frankfurter, "as to be merely in the realm of mathematical possibilities." Even so, he was disappointed. In a letter to his wife, he confessed that the nomination "was in my thoughts all the time; it made a kind of coward at me."
It was perhaps the most touching moment of Hand's career; inexplicably, Ms. Jordan omits that letter from "Reason and Imagination." Those searching for it must turn to Gerald Gunther's superb 1994 biography, "Learned Hand: The Man and the Judge."
Ms. Jordan's omits other letters between Hand and his wife, Frances, including any that might shed light on Hand's reaction to his wife's long relationship with Louis Dow, a Dartmouth professor of French. (Dow and Frances were frequently in each other's company and even traveled to Europe together.) When Hand vaguely alludes to "F.H. or Louis Dow" in a letter, the reader is left clueless about Hand's pain. For excerpts from the letters between the Hands, or between Judge Hand and Dow, one must go again to Gunther's biography, which describes the "jealousy and inadequacy" that Dow likely stirred in Hand.
Ms. Jordan focuses instead on Hand's political and judicial philosophy, which took on a decidedly pessimistic color as the years passed. His hero, Justice Holmes, once wrote that "if my fellow citizens want to go to Hell I will help them. It's my job." In a similar tone, in a 1950 letter, Hand decries "the infantile beliefs of so many of our fellows." Still, he sticks with judicial restraint. As he once explained to Lippmann: "We are in for democracy, and while I am as shaken as you, I ask for any available substitutes."
Thus the letters in "Reason and Imagination" offer a narrative arc: Hand adopted a firm philosophy of judicial restraint early in life, as a means toward progressive political ends—and stuck with the philosophy, as the years passed, as an end in itself. Decades later, as FDR replaced the conservative Supreme Court of Hand's youth with a court stocked with liberals and progressives, Hand was unwilling to rethink his views, even if the court's decisions were likely to be more in line with his political outlook.
The next generation of constitutional scholars, such as Alexander Bickel and John Hart Ely, would construct theoretical defenses for the courts' liberal rulings on issues of race and social justice. Brown v. Board of Education was their victory but Hand's defeat. His career confirms Antonin Scalia's warning, years later (before Mr. Scalia himself joined the court), that, "unfortunately, a tactic employed for half a century tends to develop into a philosophy."
Once Hand's gospel of extreme judicial restraint fell out of favor, scholars and judges, such asWilliam Rehnquist, praised him in the neutral terms of "craftsmanship." In 1958, Hand himself had said in a lecture, referring to judges and lawyers: "It is as craftsmen that we get our satisfaction and our pay."
In 2009, Justice David Souter quoted those lines in his farewell address to a conference of federal judges. But to focus on the virtues of craftsmanship leaves one vulnerable to its vices. As Richard Sennett wrote in "The Craftsman" (2008): "The obsession with getting things perfectly right may deform the work itself." There can be no better example of this danger than Judge Hand. The 1958 lectures in which he offered his ode to "craftsmanship" were the same lectures in which he condemned Brown v. Board of Education.
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Woof Marc,
Saw this post and was curious to the meaning of "special relationships"? Any feedback?
http://en.wikipedia.org/wiki/Warren_v._District_of_Columbia
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I've no comment on the particular meaning of "special relationship" here, but will say that the lack of duty to protect, as disconcerting as it can be, is pretty standard stuff-- a and a good point to keep in mind when considering our gun rights! Our GM around here has a strong background in law enforcement law related matters. Perhaps he can chime in.
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"The public-duty doctrine holds that the government and its officials owe a legal duty to the public at large but not to any individual citizen....two exceptions... the “danger creation exception” and the “special-relationship exception." http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=1172&issue_id=52007
"If a suspect is taken into custody by law enforcement, a duty to protect -be it at the scene, during transport, or at the jail-exists.7 The majority of courts require a person to be in physical custody of police before that person has a special relationship with police."..."One federal district court has held a special relationship between the state and a confidential informant existed, and thus there was a duty to protect." http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=341&issue_id=72004
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Doug pretty much nailed it. In addition, there is this:
CASTLE ROCK v. GONZALES
--------------------------------------------------------------------------------
Case Basics
Docket No.
04-278
Petitioner
Town of Castle Rock, Colorado
Respondent
Jessica Gonzales, Individually and as Next Best Friend of Her Deceased Minor Children, Rebecca Gonzales, Katheryn Gonzales, and Leslie Gonzales
Decided By
Rehnquist Court (1994-2005)
Opinion
545 U.S. ___ (2005)
Granted
Monday, November 1, 2004
Argued
Monday, March 21, 2005
Decided
Monday, June 27, 2005
Advocates
John C. Eastman
(argued the cause for Petitioner)
John P. Elwood
(argued the cause for Petitioner)
Brian J. Reichel
(argued the cause for Respondents)
TagsDue Process Miscellaneous Term: 2000-20092004
Facts of the Case
Jessica Gonzales requested a restraining order against her estranged husband. A state trial court issued the order, which prohibited the husband from seeing Gonzales or their three daughters except during pre-arranged visits. A month later, Gonzales's husband abducted the three children. Gonzales repeatedly urged the police to search for and arrest her husband, but the police told her to wait until later that evening and see if her husband brought the children back. During the night Gonzales's husband murdered all three children and then opened fire inside a police station, where police returned fire and killed him. Gonzales brought a complaint in federal District Court, alleging that the Castle Rock police had violated her rights under the Due Process Clause of the Constitution by willfully or negligently refusing to enforce her restraining order. The Due Process Clause states: "No state shall...deprive any person of life, liberty, or property, without due process of law..." The District Court dismissed the complaint, ruling that no principle of substantive or procedural due process allowed Gonzales to sue a local government for its failure to enforce a restraining order. On appeal, however, a panel of the Court of Appeals for the Tenth Circuit found that Gonzales had a legitimate procedural due process claim. A rehearing by the full appeals court agreed, ruling that Gonzales had a "protected property interest in the enforcement of the terms of her restraining order," which the police had violated.
Question
Can the holder of a restraining order bring a procedural due process claim against a local government for its failure to actively enforce the order and protect the holder from violence?
Argument
Castle Rock v. Gonzales - Oral Argument
Full Transcript Text Download MP3
Castle Rock v. Gonzales - Opinion Announcement
Full Transcript Text Download MP3
Conclusion
Decision: 7 votes for Castle Rock, 2 vote(s) against
Legal provision: Due Process
No. In a 7-2 decision, the Court ruled that Gonzales had no constitutionally- protected property interest in the enforcement of the restraining order, and therefore could not claim that the police had violated her right to due process. In order to have a "property interest" in a benefit as abstract as enforcement of a restraining order, the Court ruled, Gonzales would have needed a "legitimate claim of entitlement" to the benefit. The opinion by Justice Antonin Scalia found that state law did not entitle the holder of a restraining order to any specific mandatory action by the police. Instead, restraining orders only provide grounds for arresting the subject of the order. The specific action to be taken is up to the discretion of the police. The Court stated that "This is not the sort of 'entitlement' out of which a property interest is created." The Court concluded that since "Colorado has not created such an entitlement," Gonzales had no property interest and the Due Process Clause was therefore inapplicable. Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg, dissented.
And this:
http://www.nypost.com/p/news/local/brooklyn/to_serve_but_not_protect_Qr3ume5gEhMhtg8LvHgzAI?utm_campaign=OutbrainA&utm_source=OutbrainArticlepages&obref=obinsource
City says cops had no duty to protect subway hero who subdued killer
By KATHIANNE BONIELLO
Last Updated: 5:56 PM, February 1, 2013
Posted: 1:03 AM, January 27, 2013
He says he put his life on the line to stop a killer — and claims cops sat back and watched.
But city lawyers are arguing that the police had no legal duty to protect Joseph Lozito, the Long Island dad stabbed seven times trying to subdue madman Maksim Gelman — a courtroom maneuver the subway hero calls “disgraceful.”
A judge is currently deciding whether Lozito, who sued the city last year for failing to prevent the attack, will get his day in court.
The drug-fueled Gelman had fatally stabbed three people in Brooklyn and killed another with a car during a 28-hour rampage when he entered an uptown No. 3 train on Feb. 12, 2011.
Theodore ParisienneGOT HIM! Officer Terrance Howell escorts murder-spree maniac Maksim Gelman from Brooklyn’s 61st Precinct.Police officers Terrance Howell and Tamara Taylor were part of a massive NYPD manhunt. They were in the operator’s cab, watching the tracks between Penn Station and 42nd Street for any sign of the fugitive. Lozito was seated next to the cab.
In the official NYPD account and Howell’s own affidavit, Howell heroically tackled and subdued the killer. But Lozito tells a different story.
The 42-year-old mixed-martial-arts fan says he watched Gelman approach the cab window, barking: “Let me in!” Gelman even claimed to be a cop, but a dismissive Howell turned away, he says.
Gelman walked off. A straphanger recognizing Gelman tried to alert the cops, but was also rebuffed. A minute later, Gelman returned and set his sights on the 6-foot-2, 270-pound Lozito.
“You’re going to die,” Gelman announced — then stabbed him in the face.
Lozito leapt from his seat and lunged at the 23-year-old Gelman as the psycho sliced at him.
“Most of my wounds are in the back of my head,” Lozito said. “He got to the back of my head because my left shoulder [was] in his waist.”
In his account, Lozito pinned Gelman to the floor, disarming him. Howell then emerged from the booth, tapping Lozito’s shoulder: “You can get up now,” he said.
“By the time he got there, the dirty work was already done,” Lozito said.
Gelman was convicted in the spree — which left his girlfriend, her mother, his stepfather and a pedestrian dead, and five others injured.
Lozito says a grand-jury member later told him Howell admitted on the stand that he hid during the attack because he thought Gelman had a gun.
An angry Lozito decided to sue the city for negligence, arguing the cops should have recognized Gelman and prevented, or reacted more quickly to, the assault.
The city routinely settles such litigation but is playing hardball with Lozito, insisting his demand for unspecified money damages be tossed because the police had no “special duty” to protect him or any individual on the train that day.
“Under well-established law, the police are not liable for such incidents,” said city lawyer David Santoro. “That doesn't detract from the Police Department's public safety mission -- or the fact that New York is the safest big city in America."
Experts say it’s a long-standing legal precedent requiring police to put the public safety of all ahead of any one individual’s rights.
Lozito says his case is different.
“If the cop is on the train, and I get robbed by a stranger, of course, the cop can’t be clairvoyant,” Lozito told The Post. “But when they’re looking for Maksim Gelman, and Maksim Gelman bangs on the door and says, ‘Let me in, I’m a cop’ and all you say is: ‘No, you’re not?’ ”
1. Joseph Lozito enters the uptown No. 3 train, sitting behind the train operator. Officers Terrance Howell and Tamara Taylor enter the operator’s booth; a few minutes later, the train slowly pulls out of Penn Station.
2. Maksim Gelman walks up to the booth and says: “Let me in!” Howell allegedly dismisses him and Gelman walks away.
3. Minutes later, Gelman walks back up to the booth, looks at Lozito, says “You’re going to die,” and stabs him.
4. Lozito fights back, getting seven stab wounds during the 60-second struggle with Gelman, eventually pinning him and knocking the knife away.
5. Howell allegedly emerges from the booth, taps Lozito on the shoulder and says: “You can get up now.”
kboniello@nypost.com
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http://www.justice.gov/opa/pr/2013/January/13-crt-056.html
vs.
http://www.wwltv.com/news/eyewitness/brendanmccarthy/DOJ-blast-citys-attempt-to-void-NOPD-consent-decree--191486911.html
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If my understanding is correct the present medical community thinking is surgeons who carry blood born transmissible diseases such as Hepatitis B or C or HIV should be allowed to practice their craft being that there is a bidirectional duty to protect themselves and their patients with proper precautions. Sterile technique gloves etc. In practice it has not been rare though it seems the exception for me to see patients getting HIV test before surgery. I am not sure who ordered the tests or why but I suspect it was the surgeon looking to protect him/herself. Yet I have never heard of an infected surgeon disclosing to a prospective patient that he or she is infected. One can argue the surgeon has the right to privacy and to not be discriminated against. But I would err on the side that the patient has the right to know they are or might be at increased risk to contract a chronic infection by undergoing an invasive procedure from an infected surgeon. Indeed, I frankly take the position that an infected person has no business performing procedures on patients. Would I or you or anyone in their right mind want someone to do a bloody procedure such as opening your belly or your chest etc if I you knew the surgeon was HIV positive. Gloves will not protect from an accidental scalpel cut. On the other hand I see no reason why someone cannot be a doctor in a nonsurgical specialty.
http://news.yahoo.com/feds-hepatitis-b-no-barrier-health-practice-144109082.html
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http://gawker.com/this-is-how-you-respond-to-an-unjust-cease-and-desist-l-514155395
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http://www.washingtontimes.com/news/2013/sep/15/us-releases-illegals-who-are-sex-offenders/?page=all#pagebreak
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http://www.nytimes.com/2013/12/10/science/considering-the-humanity-of-nonhumans.html?nl=todaysheadlines&emc=edit_th_20131210
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http://www.washingtontimes.com/news/2013/dec/26/couple-faces-3500-fine-negative-online-review/
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The answer to the cash squeeze is simple. Single payer government controlled legal system. That is the best and only real answer. That way people who cannot afford attorneys can have access to legal rights including adequate competent representation not only if they are arrested but for preventative legal care. Chuck Schumer stated no doctor should make more than $80K a year. I propose that no lawyer should make more than 40K per year. They have three years training beyond college. Physicians go on to have 7 to 11 years training after college. That is fair. Why no out cry for this? Everyone knows legal representation in the US is unfair.
***Federal courts continue warnings about budget and the Sixth Amendment
National Constitution Center
By Scott Bomboy 3 hours ago
As a new year starts, the Chief Justice of the United States and top officials in the federal court system continue to warn about budget cuts that will make it harder for people to have access to public defenders.
.roberts640Chief Justice John Roberts has repeated warnings he issued in 2012 about the lack of funding for the federal court system, which he helps to oversee. Those warnings came about three weeks after similar requests from two top officials at the Administrative Office of the U.S. Courts.
On December 5, 2013, Judges John D. Bates and Julia S. Gibbons wrote Congress about the dire need for more funds for a federal court system that was strained before mandated sequester cuts took effect after the 2013 budget battle in Congress.
“Sequestration cuts to the Defender Systems program threaten the ability of the Judiciary to provide court-appointed for persons accused of a federal crime,” said Gibbons and Bates, who said that federal defender programs were cut by 11 percent during the sequester period last year.
About 90 percent of people in federal criminal cases use court-appointed counsel.
The letter was issued just before a budget deal was reached in Congress to restore some funding to government agencies.
In the budget deal cut by Representative Paul Ryan and Senator Patty Murray, some money for the next two years will be coming back to discretionary programs run by federal agencies. But the amount of funds restored will be decided by appropriations committees in Congress in mid-January.
And that isn’t enough to satisfy Chief Justice Roberts, who spelled out his concerns in a 15-page report issued on New Year’s Eve.
Among the arguments made by the Chief Justice to Congress is the fact that most federal court spending is on programs mandated by law, and the federal justice system just doesn’t have many discretionary programs to cut. In fact, it will need to cut its budget by 3 percent to accommodate “must pay” programs- before funds are restored from the sequester.
“Those cuts would lead to the loss of an estimated additional 1,000 court staff. The first consequence would be greater delays in resolving civil and criminal cases,” Roberts said. “In the civil and bankruptcy venues, further consequences would include commercial uncertainty, lost opportunities, and unvindicated rights. In the criminal venues, those consequences pose a genuine threat to public safety.”
And the more basic threat is to the sanctity of the Sixth Amendment, Roberts said, if sequester cuts are restored.
“There are fewer public defenders available to vindicate the Constitution’s guarantee of counsel to indigent criminal defendants, which leads to postponed trials and delayed justice for the innocent and guilty alike,” he said.
The public defender system has greatly expanded in the past 50 years after the 1963 decision in Gideon v. Wainwright. The highly publicized case led the Supreme Court to conclude that the Constitution required state-provided legal counsel in criminal cases for defendants who are unable to afford to pay their own attorneys.
The Gideon decision touched on three amendments—the Sixth amendment, the 14th Amendment and the Fifth Amendment. But the Sixth Amendment was at the decision’s core.
The Court ruled that the Constitution’s Sixth Amendment gives defendants the right to counsel in criminal trials where the defendant is charged with a serious offense even if they cannot afford one themselves; it states that “in all criminal prosecutions, the accused shall enjoy the right to … have the Assistance of Counsel for his defense.”
Last fall, when the sequester cuts went into place, there was heavy criticism from legal circles of its effects on the federal public defender system.
In an op-ed piece in The Wall Street Journal, jointly signed by conservative Paul Cassell and liberal Nancy Gernter, the former federal trial judges lamented the drastic impact of sequestration on budgets for public defender offices.
“[D]ue to the combination of general budget austerity and sequestration, the federal public defender system — a model of effective indigent defense for the past 40 years — is being decimated. As former federal judges from opposite ends of the ideological spectrum, we both understand that these shortsighted cuts threaten not only to cripple the federal defender system, but to disrupt the entire federal judiciary—without producing the promised cost savings,” they said.
U.S. attorney general Eric Holder also submitted his own op-ed piece to the Washington Post on the same topic.
“Despite the promise of the court’s ruling in Gideon, however, the U.S. indigent defense systems — which provide representation to those who cannot afford it — are in financial crisis, plagued by crushing caseloads and insufficient resources,” said Holder.
“Five decades after the Supreme Court affirmed that adequate legal representation is a basic right, sequestration is undermining our ability to realize this fundamental promise. The moral and societal costs of inadequate representation are too great to measure,” he added.
What happens next in the budget process is uncertain, but in an appendix to his annual report, Chief Justice Roberts said that while civil case filings at U.S. district courts were up 2 percent in 2013, there were declines in case loads in other courts.
For example, filings for criminal cases fell by three percent to 91,266. But that doesn’t necessarily represent the case load for people seeking defense help in federal cases.
Chief Justice Roberts is hoping for $1.04 billion in funding for 210,000 defense representations next year, with part of that money going to pay bills that were delayed in last year’s sequester.
In the current continuing resolution (CR) that is funding the federal government, about $26 million was restored from the sequester to pay for some vouchers related to the public defender program.
The Defender Services Office, which trains attorneys who work as public defenders in federal cases, has been blunt in its opinion about the budget cuts.
“There is no indication of what the funding situation will be beyond the expiration of the CR in January. Without a full-year appropriation that is greater than the CR level, [federal defender offices] will continue to see a budget shortfall,” the division said on its website.
In July 2013, Judges Bates and Gibbons told the Senate that reduced funding for public defenders represented a broader problem.
“Our nation recently celebrated the 50th anniversary of the 1963 landmark Supreme Court decision in Gideon v. Wainwright, which guaranteed an individual the right to court-appointed counsel,” they said. “Funding cuts are threatening that very right, a right that has been a bedrock principle of our criminal justice system for half a century.”***
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An interesting exploration of the roots of false confessions that reinforces my belief that, post incident, clamming up and demanding a lawyer are the legal route:
http://www.thejuryexpert.com/2012/11/only-the-guilty-would-confess-to-crimes%E2%80%A8-understanding-the-mystery-of-false-confessions/
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An interesting exploration of the roots of false confessions that reinforces my belief that, post incident, clamming up and demanding a lawyer are the legal route:
http://www.thejuryexpert.com/2012/11/only-the-guilty-would-confess-to-crimes%E2%80%A8-understanding-the-mystery-of-false-confessions/
Depends if you are actually guilty or not.
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PS: The "Professor Dougherty" referenced is a good friend from law school.
http://www.project-disco.org/intellectual-property/021114-the-future-of-fair-use-after-google-books/?fb_action_ids=10152748956218504&fb_action_types=og.likes&fb_ref=.Uv2BGdSvIAw.like&fb_source=other_multiline&action_object_map=[210989929103616]&action_type_map=[%22og.likes%22]&action_ref_map=[%22.Uv2BGdSvIAw.like%22]
The Future of Fair Use After Google Books
by Jonathan Band on February 11, 2014
This weekend I participated in a panel about Judge Chin’s decision in the Google Books case at the Copyright Society’s mid-winter meeting. My debating partner was Jon Baumgarten, former General Counsel of the Copyright Office and partner at Proskauer Rose, where he represented publishers, among other rights holders. Jay Dougherty, a professor at Loyola Law School, acted as the moderator/referee. The discussion revealed profound disagreement on whether fair use jurisprudence is headed in the right direction.
After Professor Dougherty provided a quick overview of the case (eight years in five minutes!), I made four arguments why Judge Chin correctly concluded that fair use permitted Google’s scanning of 20 million books into its search index.
First, in support of his finding that Google Books served the public interest, Judge Chin cited five times an amicus brief I helped write for the Library Copyright Alliance.
Second, the decision is consistent with “transformative use” decisions in the Second Circuit (Bill Graham Archives v. Dorling Kindersley, Authors Guild v. HathiTrust) as well as other circuits (A.V. v. iParadigms LLC, Kelly v. Arriba Soft Corp., Perfect 10 v. Amazon.com).
Third, to the extent that Jon Baumgarten might disagree with the transformative use jurisprudence generally, the Google Books decision fell within a subset of those decisions that involved digital technology. In these cases, although there was a large amount of copying in toto, that copying occurred “behind the curtain” in the course of creating a new product or service, and the end user generally could not see entire works. Thus, the use did not supersede the market for the works. Here, for example, Google displayed only three short “snippets” in response to each search query.
Fourth, even if one had doubts about these technological fair use cases, the Google Books case presented a unique set of circumstances that distinguished it from most other cases. In particular, because the Authors Guild did not seek preliminary relief, and did not insist that Google stop scanning during the lengthy negotiations and legal proceedings concerning the settlement, Judge Chin was confronted with a highly useful database containing 20 million books. Fashioning an appropriate remedy would be exceedingly difficult. Enjoining the use of the database until Congress develops a mass digitization exception, as the Authors Guild proposed in the HathiTrust case, was a completely unrealistic remedy. Thus, finding fair use may have been the best way forward given the facts on the ground.
Jon Baumgarten then explained why he thought Judge Chin decided the case incorrectly. Jon agreed with me that there was precedent supporting the decision, but argued that Judge Chin ignored other, more compelling, precedent. Jon’s basic point was that Judge Chin compounded the errors that are the heart of many of the transformative use cases: rather than identify whether the expression is transformed, as Judge Leval originally intended, these cases simply ask if the expression is being used for a new, socially beneficial purpose. Jon is concerned that it will be too easy for clever lawyers to highlight a socially beneficial purpose, as my amicus brief did in this case. The emphasis on socially beneficial purpose changes the focus from the infringer’s actions to uses made by third parties. It limits the ability of rights-holders to receive financial benefits from the use of their works. Analog works will become fodder for technology companies.
Jon added that although fair use is extremely important to the functioning of the copyright system, it should involve incidental activity, and not be conducted at the enterprise level. Under Judge Chin’s analysis, Google is “too big to infringe.”
Finally, Jon noted that Google’s “Partner Program,” under which it entered into licensing arrangements with publishers, indicated that there was a functioning licensing market, tilting the fourth factor against Google.
In my limited rebuttal time, I responded that while Google reached licensing agreements with some publishers with respect to some books, the copyright ownership of many of the books scanned by Google was unclear. The copyright might belong to the publisher, the author, or the author’s heirs. The transaction costs involved in determining the ownership of these books’ copyrights made licensing infeasible.
I added that reliance on fair use in this case, as well as in many of the other transformative use cases, was a function of the conflicts resulting from the interaction of a changing copyright system and evolving digital technology. On the one hand, the lengthening of copyright term and the abandonment of formalities as a condition for protection means that more works are covered by copyright than ever before – including many of the works at issue in this case. At the same time, the nature of digital technology means that users are making dramatically more copies in the course of their daily activities – turning on their computer, viewing websites with browsers, responding to and forwarding emails. During the course of the day, a user may make hundreds, if not thousands, of copies. Fair use is the theory that permits these activities.
Professor Dougherty asked the first question: was the Google Books decision consistent with the Berne three-step test? Jon Baumgarten said that it may well not be; how could the copying of millions of books be a “special case?” I replied that the three-step test applies to statutory exceptions a national legislature may adopt, so the issue would be whether fair use is compliant with the three-step test, not whether this application of fair use is three-step compliant. I noted that ever since joining the Berne Convention, the U.S. government has taken the position that fair use is three-step compliant, and as the world’s only superpower, our position on this issue is dispositive. Further, the second and third steps (“do not conflict with a normal exploitation of the work and do no unreasonably prejudice the legitimate interests of the author”) sounded like the first and fourth fair use factors (“the purpose and character of the use,” “the effect of the use upon the potential market for or value of the copyrighted work”).
A member of the audience asked whether the Google Books and HathiTrust decisions rendered the updating of section 108, as recommended by the Copyright Office, superfluous. I responded that while the exceptions in section 108 were extremely important to the operation of libraries, they probably were a bit out of date, as was the rest of the Copyright Act. Fortunately, fair use can provide some flexibility to specific exception. I mentioned my article published in the Journal of the Copyright Society where I argued that in situations where a defendant engaged in the sort of activity permitted by a specific exception, but ultimately did not qualify for a narrow technical reason, the court should consider the defendant’s substantial compliance with the exception when applying the first fair use factor – the purpose and character of the use. I added that in a perfect world, Congress should update section 108, and the rest of the Copyright Act. But we live in an imperfect world, and given the availability of fair use, it made no sense for libraries and publishers to spend five years negotiating an update to section 108 that would be obsolete when completed.
Jon Baumgarten opined that my Copyright Society article was very scholarly, and dead wrong.
Another member of the audience made an impassioned statement that by pushing the fair use envelope, Google was in effect deciding unilaterally what the copyright law was, thereby forcing copyright owners to abandon their rights. Some audience members applauded at the conclusion of this statement.
I replied that it wasn’t only Google that was relying on fair use. Some recent prevailing fair use defendants include Bloomberg, Thomson Reuters, and Reed Elsevier. I pointed out that Thomson Reuters and Reed Elsevier without authorization copied over a million briefs and other pleadings, which they incorporated into a commercial database product. When sued by a law firm, these publishers successfully argued that they had engaged in a transformative use.
Moreover, in many cases, plaintiffs are able to convince courts to reject assertions of transformative use. In the Salinger case, the Second Circuit found that a sequel to Catcher in the Rye was an infringing derivative work. Likewise, a district court found that a Harry Potter lexicon copied more expression than necessary to accomplish its purpose. In other words, courts are perfectly capable of distinguishing legitimate transformative uses from infringing derivative ones. They are readily equipped to find uses that will advance the public interest without diminishing an author’s incentive to create.
After a panel of this sort, I always think of arguments I should have made, or more convincing ways to frame an argument I did make. A point I did not make is one I wrote about soon after the decision. I argued that for at least some of the Authors Guild members, this case has always been about the principle that no one should use their works without their permission. While they may agree with fair use in the abstract, they oppose it as applied to their works. The fact that the use is socially beneficial and does not harm them economically is irrelevant. They believe that creators should have complete control over copies. The positions Jon Baumgarten expressed this past weekend are consistent with this perspective.
This belief in complete control is based more on the Continental “author’s rights” (droit d’auteur) tradition than on the Anglo-American utilitarian tradition. In the author’s rights approach, copyright springs not from statutes but from natural law. By contrast, in the Anglo-American system, copyright is not a response to natural law, but rather is a matter of legislative choice directed at incentivizing the creation of works for the benefit of society. The Anglo-American utilitarian approach in theory provides only as much protection as is necessary to encourage creative activity, while the author’s rights approach provides more robust protections of both economics and moral rights such as the rights of integrity and attribution.
However, in response to lobbying by right-holders, Congress has enacted certain features of author’s rights systems – for example, the ever-increasing copyright term, referenced above. The first U.S. copyright act provided a term of 14 years, renewable for another 14 years, for a maximum total of 28 years. Now, the copyright term matches the European Union’s term of life of the author plus 70 years.
The complete control over copyrighted works sought by the Authors Guild in this case is inconsistent with the public interest purpose of our copyright system. Fortunately, Judge Chin recognized that the objective of copyright is not to enrich rights-holders, but “to advance the progress of the arts and sciences.”
Jonathan Band is a DC-based attorney whose clients include Internet companies, providers of information technology, universities, library associations, and CCIA. He previously guest-posted on DisCo about the impact of software infringement on manufacturing competitiveness.
Tagged as: Copyright, Fair Use, Google, Intellectual Property
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Interesting situation. I didn't know it is illegal to allow someone "visibly" drunk to play at a casino in Nevada. I thought that was one of the casino's goals.
Gambling while under the influence? How the heck does one sort this out. Maybe we need a breathalyzer test for those who drink and gamble. Then one gets into the concept of "impairment" as well. What a mess sorting this out:
****Gambler sues, says he lost $500,000 playing drunk
Associated Press
By HANNAH DREIER 13 hours ago
LAS VEGAS (AP) — A businessman who lost $500,000 on table games at a Las Vegas casino on Super Bowl weekend is arguing that he shouldn't have to pay because he was blackout drunk.
Southern California gambler Mark Johnston, 52, is suing the Downtown Grand for loaning him money and serving him drinks when he was visibly intoxicated.
Nevada law bars casinos from allowing obviously drunk patrons to gamble and from serving them comped drinks.
Johnston's attorney, Sean Lyttle, says the Grand, which opened last November in the old part of Las Vegas, intends to pursue Johnston for trying to shirk his gambling debts. Johnston put a stop-payment order on the markers, or casino credits, the Grand issued, and is also seeking damages from the Grand for sullying his name.
Johnston says he was thoroughly drunk during the hours he spent playing pai gow and blackjack at the Grand. His legal team plans to rely on eyewitness testimony and surveillance video to prove that he was visibly intoxicated.
Johnston lives in Ventura and made his fortune in car dealership and real estate ventures.
The Grand issued a statement saying it does not comment on pending litigation.
The state Gaming Control Board is investigating.
"It's certainly an extraordinary case. This is not a story that I've ever heard before, where someone was blackout intoxicated where they couldn't read their cards, and yet a casino continued to serve them drinks and issue them more markers," Lyttle said. "It's a very heavy-handed and unusual approach that we haven't seen in this town in a long time."
Johnston arrived in Las Vegas with the woman he was dating on the Thursday before the Super Bowl. He drank in the limousine from the Las Vegas airport to the Grand, drank more during dinner with friends, and then says he blacked out.
The suit alleges that the Grand comped him dozens of drinks while he gambled away hundreds of thousands of dollars, finally sleeping off his drunkenness on that Saturday, which was Feb, 1. Johnston says he didn't learn how much he had lost until the next day.
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Hannah Dreier can be reached at http://twitter.com/hannahdreier
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He shouldn't get one thin dime. Should have to cover all court costs too.
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***Nevada law bars casinos from allowing obviously drunk patrons to gamble and from serving them comped drinks.***
I have little sympathy for this guy yet the casino employees seemed to have no problem doing what is according to this illegal.
Or so he claims.
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Have we had such an obvious racist on the Supreme Court besides Justice Taney?:
http://www.huffingtonpost.com/2013/06/17/dogs-meet-sister_n_3455235.html
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With regards to the LA Clippers owner's reported "racist rant" that I understand was intended to be a private conversation between him and his girlfriend I see California is a "two party" state. We have no information who taped this conversation or released it. He did not post it online. Perhaps he said it at a public game but he expected this to be a private conversation. Even if his girlfriend was the one who taped it, in Kalifornicata both parties have to be privy thus he could sue and it violates state law as well:
*****Recording Phone Calls and Conversations
If you plan to record telephone calls or in-person conversations (including by recording video that captures sound), you should be aware that there are federal and state wiretapping laws that may limit your ability to do so. These laws not only expose you to the risk of criminal prosecution, but also potentially give an injured party a civil claim for money damages against you.
From a legal standpoint, the most important question in the recording context is whether you must get consent from one or all of the parties to a phone call or conversation before recording it. Federal law and many state wiretapping statutes permit recording if one party (including you) to the phone call or conversation consents. Other states require that all parties to the communication consent.
Unfortunately, it is not always easy to tell which law applies to a communication, especially a phone call. For example, if you and the person you are recording are in different states, then it is difficult to say in advance whether federal or state law applies, and if state law applies which of the two (or more) relevant state laws will control the situation. Therefore, if you record a phone call with participants in more than one state, it is best to play it safe and get the consent of all parties. However, when you and the person you are recording are both located in the same state, then you can rely with greater certainty on the law of that state. In some states, this will mean that you can record with the consent of one party to the communication. In others, you will still need to get everyone's consent. For details on the wiretapping laws in the fifteen most populous U.S. states and the District of Columbia, see the State Law: Recording section. In any event, it never hurts to play it safe and get the consent of all parties to a phone call or conversation that you intend to record.
Who must give permission to record a telephone or in-person conversation?
Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d). This is called a "one-party consent" law. Under a one-party consent law, you can record a phone call or conversation so long as you are a party to the conversation. Furthermore, if you are not a party to the conversation, a "one-party consent" law will allow you to record the conversation or phone call so long as your source consents and has full knowledge that the communication will be recorded.
In addition to federal law, thirty-eight states and the District of Columbia have adopted "one-party consent" laws and permit individuals to record phone calls and conversations to which they are a party or when one party to the communication consents. See the State Law: Recording section of this legal guide for information on state wiretapping laws.
When must you get permission from everyone involved before recording?
Eleven states require the consent of every party to a phone call or conversation in order to make the recording lawful. These "two-party consent" laws have been adopted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington (Hawai'i is also in general a one-party state, but requires two-party consent if the recording device is installed in a private place). Although they are referred to as "two-party consent" laws, consent must be obtained from every party to a phone call or conversation if it involves more than two people. In some of these states, it might be enough if all parties to the call or conversation know that you are recording and proceed with the communication anyway, even if they do not voice explicit consent. See the State Law: Recording section of this legal guide for information on specific states' wiretapping laws.
Can you record a phone call or conversation when you do not have consent from one of the parties?
Regardless of whether state or federal law governs the situation, it is almost always illegal to record a phone call or private conversation to which you are not a party, do not have consent from at least one party, and could not naturally overhear. In addition, federal and many state laws do not permit you to surreptitiously place a bug or recording device on a person or telephone, in a home, office or restaurant to secretly record a conversation between two people who have not consented.
Federal law and most state statutes also make disclosing the contents of an illegally intercepted telephone call illegal. See the section on Risks Associated with Publication in this guide for more information.
What if you are recording the activities of the police or other government officials in public?
Special considerations apply when recording police officers or other public officials. You may have a constitutional right to openly record the activities of police and other officials in public, so long as you do not interfere with those activities or violate generally applicable laws. For more information, see the section on Recording Police Officers and Public Officials.
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How is it that the President has this kind of unchecked power? I would dispute the numbers. Reagan is obviously champion pardoner in chief when he pardoned 3 million illegals. The record is soon to be smashed.
******About Presidential Pardons
By Shelley Moore, eHow Contributor
The president of the United States has nearly unlimited power to grant pardons and override the criminal-justice system at his sole discretion. The power is granted by Article II, Section 2 of the U.S. Constitution, which gives the president "power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." The presidential power to pardon cannot be limited by any other branch of government. Have a question? Get an answer from a lawyer now!
Original Purpose
To the framers of the Constitution, the power to pardon was probably a natural inclusion, as they were accustomed to this power being used by the king of England to correct injustices. In England, even minor offenses could carry a death sentence, and a royal pardon was the only way to avoid this punishment. The framers of the Constitution also saw a presidential pardon as being useful during war and rebellion, when a pardon could induce rebels to reconcile. As noted by Alexander Hamilton, an offer of a pardon "to the insurgents or rebels may restore the tranquility of the commonwealth."
Full Pardons and Commutations
Although a full pardon completely overturns a conviction, it does not imply that the conviction was in error. The full pardon reinstates a person's ability to apply for jobs that do not allow criminal convictions, such as law-enforcement positions, and to regain certain privileges, such as carrying a firearm. Presidents also can reduce a criminal sentence rather than issuing a full pardon, called a commutation of sentence. It is common for presidents to issue many pardons during their last month in office.
Recent Numbers
The pardon power is controversial, especially when a president pardons numerous people, as Bill Clinton and Ronald Reagan did. Clinton pardoned 395 people during his eight years in office, and Reagan pardoned 393. George H.W. Bush, in contrast, pardoned only 75 in his four-year term, and George W. Bush 171 in eight years.
A Famous Pardon
Pardons often are used more for political reasons than for an offender's atonement or any type of judicial error. Perhaps the most famous pardon was Gerald Ford's pardon of former president Richard Nixon in 1974, when Nixon had not even been formally charged with a crime. Although Ford lost a great deal of favor after the pardon, with people cynically referring to him as "Nixon's man," many historians indicate he might have done the right thing by allowing the nation to move on and heal after the Watergate scandal.
Another Controversial Pardon
Ironically, Jimmy Carter, who beat Ford in the next election perhaps partly because of the Nixon pardon, almost immediately issued a controversial pardon when he took office. Carter pardoned all those who avoided serving in the Vietnam War by leaving the country or not registering for the draft.********
Read more: http://www.ehow.com/about_4928054_presidential-pardons.html#ixzz33QoRzEBq
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How obvious does it have to be?
http://en.wikipedia.org/wiki/Obstruction_of_justice
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Do you have any thoughts as to the merits legally, politically, strategically, or practically on the GOP lawsuit against Obama?
Thanks in advance.
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As a Separation of Powers issue of profound C'l importance, that discussion belongs in that thread on the CSH forum.
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http://www.jewishworldreview.com/cols/will082314.php3
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Should parents in California teach their children to get signed contracts to have sex before they initiate sex?
There is no end to the politicians, the liberals, and the lawyering of every aspect of our lives:
http://news.yahoo.com/california-passes-yes-means-yes-campus-sexual-assault-092512755.html
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Jay Dougherty was my best friend in law school.
http://lareviewofbooks.org/interview/authors-guild-vs-google-fair-use-foul-play#
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I dunno. Don't pols make these kinds of deals all day long? So what? It is not a bribe for money or a job. While I don't like it I would think this is what Congress and Senators do all the time to get people to vote their way:
*****Ex-Con Dem Pol Says DWS Could Have Had Feds Called On Her
8:04 AM, Feb 20, 2015 • By MICHAEL WARREN
Florida congresswoman and chairman of the Democratic National Committee Debbie Wasserman Schultz might have been the subject of a federal investigation, suggests a former Democratic politician and ex-con. Politico reports that Wasserman Schultz "offered to change her position on medical marijuana if a major Florida donor recanted his withering criticism of her."
The proposal to Orlando trial lawyer John Morgan was straightforward: retract critical statements he made to a reporter in return for Wasserman Schultz publicly backing his cannabis initiative that she had trashed just months earlier. Morgan declined the offer with a sharp email reply sent to a go-between, who described the congresswoman as being in a “tizzy.”
The email exchange, which was forwarded by Morgan to Politico, is certainly embarrassing for the congresswoman. But former Missouri state senator and failed congressional candidate Jeff Smith, a Democrat who was convicted and imprisoned in 2010 for violating federal election laws, says Wasserman Schultz should be thankful the Florida donor didn't bring in federal investigators in to catch the DNC chair in the act:
DWS very lucky Morgan, who clearly despises her, didn't tip the feds, wire up, and meet w/ to propose a deal. http://t.co/4bKedBrzMx
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Well wait a second. It was Obama's policies that allowed the Ebola virus into the US that led to her infection. This was the same girl shown hugging Obamster. She should be blaming him. Not the hospital.
http://res.dallasnews.com/interactives/nina-pham/
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Shouldn't this be in the Epidemics thread? Why here?
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Well it was a lawsuit against the hospital. Attorney on Cable just finished saying how hospitals need to protect their employees. I guess the President doesn't have to protect Americans. Hospitals do.
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Ah.
Fair enough :-D
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As a coin collector when I was 8 I read this with interest. I am ambivalent about the decision and note it reverses a jury decision. Off the top of my head I am not aware of clearly stolen items being allowed to stay with the descendants of the thief. On the other hand one could argue he did the world a favor by preserving 10 examples of what are now considered treasures and works of art:
http://www.stuff.co.nz/world/americas/67853550/Rare-Double-Eagle-gold-coins-worth-104m-returned-to-family
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Back in the late 70s I learned that hair could be used as corroborative evidence but not proof. One could say a hair was consistent with a defendent's or suspect's hair but could not unequivocally say it was a unique match. That was before DNA analysis. Since one could get DNA from a hair follicle and maybe even the shaft one would think that hair analysis can make more "unique" matches. So I don't understand what happened here. But I am glad this article points out that flawed DNA testing doesn't necessarily mean the suspect is innocent. One would think after hearing some speak in the media that every time there is no match of DMA therefore the suspect must have been innocent.
That said if people are convicted and jailed for poor or wrong science that is shocking unto itself.
http://www.washingtonpost.com/local/crime/fbi-overstated-forensic-hair-matches-in-nearly-all-criminal-trials-for-decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html
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Accidental Talmudist
A Jewish merchant in 19th century Ukraine had reached an understanding with a wealthy, non-Jewish landowner to buy a section of his forest for lumbering.
No contract was written, and when the price of lumber fell, the merchant wished to renegotiate the deal, claiming that he was not legally bound by the verbal agreement.
The landowner knew that according to civil law, the merchant was right, so he suggested instead that they take their dispute to the famous Rebbe of Tolna for a decision according to Jewish Law.
The Rebbe listened to both sides, then ruled that although there was no legal contract, the Talmud pronounces a severe curse upon one who breaks a verbal agreement, and that certainly the merchant would not wish to subject himself to this.
The Rebbe therefore found in favor of the landowner.
The landowner was pleased with the decision, but he had a question. ''In our courts there is a much longer process, and if a litigant is displeased with the court's decision, he can appeal to a higher court. And there are several levels of appeals beyond that. Suppose the merchant wished to appeal your decision. What recourse does he have?''
The Rebbe smiled and said, ''One time a wolf attacked a flock of sheep, and the animals dispersed. The wolf pursued one of them, but before he had a chance to seize it, a lion emerged and pounced on the sheep. The wolf protested that the prey was his, because he had caused the sheep to leave the flock, but the lion said that he had as much right to the sheep as the wolf, since neither had paid for it. They agreed to take their dispute before the fox, who was the wisest of all the animals.
"The fox ruled that the sheep should be divided equally between the two, and proceeded to cut the sheep in half. He noted, however, that one portion was larger than the other, so he nibbled away a bit. Then, seeing that the new portion was smaller, he nibbled away a bit of the other. This 'equalization' process continued until the fox had left nothing but the bones for the wolf and lion.
''In your courts,'' the Rebbe continued, ''there are indeed many appeals, with the result that the lawyers on each side nibble on the disputed assets. By the time a final decision is reached, all that is left for the litigants are the bones. We may not have an appeals process, but both litigants are likely to benefit from our judgment.''
Adapted from the wonderful book, Not Just Stories: The Chassidic Spirit Through Its Classic Stories by Rabbi Abraham Twerski M.D. (see http://amzn.to/1KQUKoj)
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https://www.facebook.com/HuffPostLive/videos/781606261959040/
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http://dailysignal.com/2016/02/03/judge-makes-government-pay-legal-fees-to-store-owner-whose-107700-was-seized-by-the-irs/?utm_source=heritagefoundation&utm_medium=email&utm_campaign=morningbell&mkt_tok=3RkMMJWWfF9wsRovs6%2FBZKXonjHpfsX87%2B8sW6eygYkz2EFye%2BLIHETpodcMTcZqPLnYDBceEJhqyQJxPr3NLtQN191pRhLiDA%3D%3D
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http://dailysignal.com/2016/02/03/judge-makes-government-pay-legal-fees-to-store-owner-whose-107700-was-seized-by-the-irs/?utm_source=heritagefoundation&utm_medium=email&utm_campaign=morningbell&mkt_tok=3RkMMJWWfF9wsRovs6%2FBZKXonjHpfsX87%2B8sW6eygYkz2EFye%2BLIHETpodcMTcZqPLnYDBceEJhqyQJxPr3NLtQN191pRhLiDA%3D%3D
Good.
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A Soldier’s Challenge to the President
By THE EDITORIAL BOARD
MAY 10, 2016
Capt. Nathan Michael Smith, who is 28, is helping wage war on the Islamic State as an Army intelligence officer deployed in Kuwait. He is no conscientious objector. Yet he sued President Obama last week, making a persuasive case that the military campaign is illegal unless Congress explicitly authorizes it.
“When President Obama ordered airstrikes in Iraq in August 2014 and in Syria in September 2014, I was ready for action,” he wrote in a statement attached to the lawsuit. “In my opinion, the operation is justified both militarily and morally.” But as his suit makes clear, that does not make it legal.
Constitutional experts and some members of Congress have also challenged the Obama administration’s thin legal rationale for using military force in Iraq and Syria. The Federal District Court for the District of Columbia should allow the suit to move forward to force the White House and Congress to confront an important question both have irresponsibly skirted.
The 1973 War Powers Resolution requires that the president obtain “specific statutory authorization” soon after sending troops to war. Mr. Obama’s war against the Islamic State, also known as ISIS and ISIL, was billed as a short-term humanitarian intervention when it began in August 2014. The president and senior administration officials repeatedly asserted that the United States would not be dragged back into a Middle East quagmire. The mission, they vowed, would not involve “troops on the ground.” Yet the Pentagon now has more than 4,000 troops in Iraq and 300 in Syria. Last week’s combat death of a member of the Navy SEALs, Special Warfare Operator First Class Charles Keating IV, underscored that the conflict has escalated, drawing American troops to the front lines.
“We keep saying it’s supposed to be advising that we’re doing, and yet we’re losing one kid at a time,” Phyllis Holmes, Petty Officer Keating’s grandmother, told The Times.
Asked on Thursday about the lawsuit, the White House press secretary, Josh Earnest, said it raised “legitimate questions for every American to be asking.” The administration has repeatedly urged Congress to pass a war authorization for the war against the Islamic State. It currently relies on the authorization for the use of military force passed in 2001 for the explicit purpose of targeting the perpetrators of the Sept. 11 attacks, which paved the way for the invasion of Afghanistan.
“One thing is abundantly clear: Our men and women in uniform and our coalition partners are on the front lines of our war against ISIL, while Congress has remained on the sidelines,” the White House spokesman Ned Price said in an email.
Yet, the White House has enabled Congress to shirk its responsibility by arguing that a new war authorization would be ideal but not necessary. Administration officials could have forced Congress to act by declaring that it could not rely indefinitely on the Afghanistan war authorization and giving lawmakers a deadline to pass a new law.
By failing to pass a new one, Congress and the administration are setting a dangerous precedent that the next president may be tempted to abuse. That is particularly worrisome given the bellicose temperament of Donald Trump, the likely Republican nominee.
It is not too late to act before the presidential election in November. The Senate majority leader, Mitch McConnell, and House Speaker Paul Ryan have shown little interest in passing an authorization. They should feel compelled to heed the call of a young deployed soldier who is asking them to do their job.
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As far as I know it was Anderson Cooper's constant war against bullying (gays) that made the word ubiquitous.
I wasn't going to post this as it is just about a lawsuit till I saw this phrase, "food allergy bullying". Another form of micro aggression. Should "micro aggression " be grounds for assault?
http://www.bostonglobe.com/metro/2016/06/05/family-allergic-child-sues-panera-for-putting-peanut-butter-grilled-cheese-sandwich/ugk2bWDfWSui6f8wSFimdO/story.html
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https://www.yahoo.com/news/oregon-court-cast-just-majorly-200050228.html
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Uploaded on Feb 27, 2011
Who do you Love? (Bo Diddley) video of live performance by Quicksilver Messenger Service at Winterland in 1973.
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Video excerpt all materials presented under fair use for non-profit, research, and educational purposes, copyright reserved by the original owners including but not limited to Bill Graham Archives, LLC, and Wolfgangs Vault, who I would like to thank in advance for their kindness and patience in not having their lawyers smash me and my little youtube account flatter than hammered shit.
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'I like Dick Dale, I could appreciate him more during the surf period....like I was like.... I was anti-surf, you know? Because they were collegiate. They would like ...like during the folk era, you know...The Kingston Trio........ I was a beatnik..... I was more into jazz....grooving, sharing, umm....that kind of stuff, and like but Link Wray, man. Link Wray affected me so much that first of all, alot of my style, alot of my chords and stuff I got by copying, you know? I saw him on TV man. I'd never played guitar, and he had his guitar that looked so offensive, it was phallic...Rumble, man.....Rumble just blew me away. That's what turned me on to playing guitar. He's the father of the power chord. I still remember it as one of my strongest memories, man. It just burned itself in my mind. I heard Rumble....it was '58. When I heard that, what I heard was, dirty, man. What he was doing was saying, f#ck man, kiss my ass, you know, real rebellious shit, you know, without saying it, you know?' -John Cipollina
Quicksilver Messenger Service initially held back from signing a record deal but eventually signed to Capitol Records in late 1967, becoming the last of the top-ranked San Francisco bands to sign with a major label. Capitol was the only company that had missed out on signing a San Francisco freak band during the first flurry of record company interest and, consequently, QMS was able to negotiate a better deal than many of their peers. Quicksilver Messenger Service had appeared on the movie and soundtrack album Revolution.
Quicksilver Messenger Service released their eponymous debut album in 1968. It was followed by Happy Trails, released in early 1969 and largely recorded live at the Fillmore East and the Fillmore West. According to David Freiberg, at least one of the live tracks was augmented with studio overdubs and the tracks Calvary and Lady of the Cancer Moon were recorded in the studio just before Gary Duncan left Quicksilver Messenger Service.
These albums, which have been hailed as two of the best examples of the San Francisco sound at its purest define the classic period in the group's career and showcase their distinctive sound, emphasizing extended arrangements and fluid twin-guitar improvisation. Cipollina's highly melodic, individualistic lead guitar style, combined with Gary Duncan's driving rhythm guitar, feature a clear jazz sound, a notable contrast to the heavily amplified and overdriven sound of contemporaries like Cream and Jimi Hendrix. In 2003 Happy Trails was rated at #189 in the Rolling Stone Top 500 albums survey, where it was described as the definitive live recording of the mid-Sixties San Francisco psychedelic-ballroom experience. Archetypal Quicksilver Messenger Service songs include the elongated, continually re-titled suite based on Bo Diddley's Who Do You Love?. Additionally QMS had a reputation for joining their fans in the use of LSD during their live shows.
QMS's guitar work shimmered with a brilliance and clarity which made other bands seem murky in comparison. Unlike most members of the other San Francisco acid rock bands, who were often folkies converted to rock, John Cipollina and Gary Duncan were rock musicians before forming their band. Gary Duncan's playing clearly had the broadest scope of any guitarist among the S. F. bands and he had an expert facility to deliver it. Equally expert was John Cipollina, who also had the clearest vision of how he wanted to sound. Cipollina's playing was so completely given over to that vision, and he presented it so well, that the question of scope never arose. John's electric guitar playing was the musical essence of electricity itself, as though he was playing the current directly and the guitar was the valve that allowed him to do that.
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Clock Boy vs Blaze :lol:
http://lawnewz.com/high-profile/clock-boy-and-his-father-sue-glenn-beck-and-the-blaze-for-defamation/
I would rather see them in a mud wrestling match.
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Lets see pack the Federal Court system with liberal ideologues and then work to remove the redistricting power from the States via the Courts.
https://www.conservativereview.com/commentary/2016/10/obamas-post-presidency-agenda-revealed-attack-state-redistricting-in-the-name-of-fairness
Liberals just refuse to go away.
I suppose he went to Soro for funding .
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https://www.lawfareblog.com/lawyerly-integrity-trump-administration
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Was Goldsmith in a coma 2009-2016? Or was there not a smidgen of corruption for him to notice?
https://www.lawfareblog.com/lawyerly-integrity-trump-administration
http://www.judicialwatch.org/press-room/press-releases/judicial-watch-obtains-fast-furious-crime-scene-photos-phoenix-2013-gang-style-assault-rifle-supplied-obama-justice-department/
Judicial Watch Obtains Fast and Furious Crime Scene Photos from Phoenix 2013 Gang-Style Assault with Rifle Supplied by Obama Justice Department
DECEMBER 18, 2014
Photos include close-up shots of Fast and Furious AK-47 rifle, blood-stained apartment, victim with massive head wound
(Washington, DC) – Judicial Watch announced today that it has obtained graphic crime scene photos taken at the site of a 2013 gang-style assault on a Phoenix, AZ, apartment building, including a close-up photo revealing the serial number of the AK-47 rifle used by the assailants. As a result of Judicial Watch’s October 2, 2014, public records lawsuit, the weapon has been already traced to the Obama Department of Justice (DOJ) Operation Fast and Furious gunrunning program. The photos were also produced by the Phoenix Police Department in response to this lawsuit (Judicial Watch v. City of Phoenix (No. CV2014- 012018)). Full batch of photos can be viewed here.
According to press reports at the time of the assault, police investigating the shooting that left two wounded found an AK-47 assault rifle in the front passenger area of a vehicle that had crashed into a fence surrounding the apartment complex. Inside sources informed Judicial Watch at the time of the crime scene investigation that the AK-47 used in the assault had been provided to the assailants as part of the Obama-Holder Fast and Furious program. On October 16, 2014, Judicial Watch announced that, based upon information uncovered through its October 2 public records lawsuit, the U.S. Congress had confirmed that the rifle was tied to the Fast and Furious operation. Attorney General Eric Holder has already admitted that guns from the Fast and Furious scandal are expected to be used in criminal activity on both sides of the U.S.-Mexico border for years to come.
In an October 16 letter to Deputy Attorney General James Cole, Sen. Charles Grassley (R-IA) and Rep. Darryl Issa (R-CA) to Deputy Attorney General James Cole detail:
Based on the serial number [1977DX1654] from the police report obtained by Judicial Watch and documents obtained during our Fast and Furious investigation, we can confirm that the assault rifle recovered in the vehicle on July 30, 2013, was purchased by Sean Christopher Stewart. Stewart pled guilty to firearms trafficking charges resulting from his involvement with Operation Fast and Furious … Stewart purchased this particular firearm on December 8, 2009, one of 40 that he purchased that day while under ATF surveillance.” [Emphasis in original]
According to the Phoenix Police Department report, ATF traced the firearm on July 31, 2013, the day after Phoenix police officers recovered it. Yet, over a full year has passed, and the Department has failed to notify the Committees … This lack of transparency about the consequences of Fast and Furious undermines public confidence in law enforcement and gives the impression that the Department is seeking to suppress information and limit its exposure to public scrutiny.
In addition, despite the fact that the crime scene photos obtained by Judicial Watch clearly revealed a serial number that would show that the AK-47 used in the commission of the crime was a Fast and Furious weapon, the City of Phoenix and Department of Justice failed to turn over the incriminating photos to Congress, despite longstanding requests for such information. According to Judicial Watch sources, investigators knew at the scene and subsequently that the AK-47 was a Fast and Furious weapon.
The graphic crime scene photos include, but are not limited to, the following:
The Fast and Furious AK-47 laying in the front passenger well of the assailant’s vehicle
The Fast and Furious AK-47 in the police department evidence room
A close-up shot of the Fast and Furious AK-47 clearly revealing the ID number
A picture of the blood-stained apartment of the victim shot in the assault
A close-up picture of the victim with a massive gunshot head wound
A close-up shot of the victim’s ID
A handgun found at the scene of the crime
Three weeks following the July 29, 2013, assault, four suspects were apprehended in a raid conducted jointly by Phoenix police detectives and investigators from the Department of Homeland Security (DHS). According to press reports at the time “numerous rifles and handguns” were found when, “Detectives from the Phoenix Police Department and Homeland Security Investigations served federal search warrants.”
The presence of DHS investigators immediately raised questions because Phoenix was the central location of the ATF’s deadly Fast and Furious gunrunning operation. Operation Fast and Furious was a Justice Department/ Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) program in which the Obama administration allowed guns to go to Mexican drug cartels in the hopes that the guns would end up at crime scenes, thereby advancing gun-control policies. Fast and Furious weapons have been implicated in the murder of Border Patrol Agent Brian Terry and hundreds of other innocents in Mexico.
The failure to provide Congress with reports about the Phoenix crime scene is not the first time the Obama Justice Department has been accused of withholding Fast and Furious information. On June 28, 2012, Attorney General Eric Holder was held in contempt by the House of Representatives over his refusal to turn over documents about why the Obama administration may have lied to Congress and refused for months to disclose the truth about the gunrunning operation. It marked the first time in U.S. history a sitting Attorney General was held in contempt of Congress.
Separate Judicial Watch litigation for these documents, which had been subjected to an extraordinary executive privilege reelection season claim by President Obama, forced their release. Attorney General Holder announced his surprise retirement two days after the federal court ruling that led to the disclosure of the documents and to President Obama’s abandoning all of his controversial executive privilege claims that had kept the documents secret for nearly three years.
“Another Obama administration Fast and Furious cover-up has been undone by Judicial Watch. These crime scene photos graphically illustrate the legacy of President Obama and Eric Holder’s deadly Fast and Furious lies,” said Judicial Watch President Tom Fitton. “Even as the evidence and casualties mount, the Obama administration is still secreting information about its reckless program. These photos show the American people firsthand the bloody consequences when an out-of-control administration will not even admit – or correct – its own mistakes.”
___________________________________________________________________________________________________
https://aclj.org/executive-power/acljs-files-lawsuit-over-ag-lynchs-secret-meeting-with-bill-clinton-will-hold-obamas-justice-department-accountable
I told you about the Obama Justice Department’s incompetence and corruption when, over four months ago, I called for Attorney General Loretta Lynch’s resignation.
I told you about General Lynch’s decision to hold a secret meeting on her airplane with former President Bill Clinton – just days before the FBI interviewed his wife, the former Secretary of State, as part of a criminal investigation; and just days before General Lynch announced the former Secretary of State would not be indicted. Here’s what I said in June:
Misconduct. Dishonesty. Impropriety. No matter what word you choose, Attorney General Lynch’s secret meeting with former President Bill Clinton was flat-out wrong. She’s clearly disqualified from participating in the investigations into former Secretary of State Clinton’s private email server.
And she must resign.
I’m leading our senior litigation team preparing to file legal demands and ethics complaints. If the DOJ doesn’t respond and she doesn’t resign, we’ll be back in federal court.
As promised, we took action. We sent Freedom of Information Act (FOIA) requests to the Obama Justice Department and the FBI, demanding answers on how such a careless and perhaps intentionally underhanded meeting was allowed to happen.
The FBI acknowledged our FOIA requests, and even granted our request for expedited processing by determining that we had shown our requests concerned “[a] matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” The Justice Department remained silent.
Then, last week’s earth-shattering news hit that the FBI – a component of the Justice Department – was reopening the underlying criminal investigation.
And early this week, the FBI advised the ACLJ Government Accountability Project that “[n]o records responsive to your request were located.” Hard to believe. What may be even harder to believe, though, is the fact that the Department of Justice completely ignored our lawful requests for records. Or maybe that’s just par for the course.
So today, we’re forcing their hand. We’re taking the Obama Administration to federal court. Again. We’re filing a lawsuit against the Department of Justice, to ensure true justice. If the corruption and flippant disregard for the law won’t stop, neither will our Government Accountability Project, and neither will our lawsuits.
As we explained in our Complaint, we’re demanding records like this:
Any and all records containing the names of any DOJ official, staff or employee who participated in any discussion regarding the meeting between General Lynch and Bill Clinton that occurred on Monday, June 27, 2016, at Sky Harbor International Airport in Phoenix, Arizona.
Any and all records, communications or briefings prepared, sent, received or reviewed by General Lynch or any other DOJ official, staff or employee, at any time, containing any discussion of or in any way regarding the meeting between General Lynch and Bill Clinton that occurred on Monday, June 27, 2016, at Sky Harbor International Airport in Phoenix, Arizona.
Any and all records of any communication or briefing received by General Lynch, any DOJ official, staff or employee from Bill Clinton or his staff regarding the meeting between General Lynch and Bill Clinton that occurred on Monday, June 27, 2016, at Sky Harbor International Airport in Phoenix, Arizona, regardless of whether the communication or briefing was received before, during, or after the meeting.
Any and all records of any communication or briefing prepared, sent, received or reviewed by General Lynch, her staff, or any other DOJ official or employee or any other person from June 13, 2016 to Sunday, June 26, 2016, containing any discussion of or in any way naming, regarding, involving or referencing Bill Clinton.
Any and all records of any communication or briefing prepared, sent, received or reviewed by General Lynch, her staff, or any other DOJ official or employee after the meeting on Monday, June 27, 2016, between General Lynch and Bill Clinton at Sky Harbor International Airport in Phoenix, Arizona, containing any discussion of ethics rules or DOJ Standards of Conduct governing attorneys in connection with the meeting or Lynch’s relationship with Bill Clinton.
Any and all records of any communication or briefing prepared, sent, received or reviewed by General Lynch, her staff, or any other DOJ official or employee after the meeting on Monday, June 27, 2016, between General Lynch and Bill Clinton at Sky Harbor International Airport in Phoenix, Arizona, containing any discussion of the press, responding to the press, or the content of any press release or public statements in connection with the meeting.
We told the Court: “The Defendant [DOJ] has wholly failed to respond to Plaintiff’s FOIA request.” In fact, the Obama Administration’s failure to respond violated the statute in two ways. So we brought two Counts. First, in Count I, we explained:
Pursuant to 5 U.S.C. § 552(a)(6)(A), Defendant was required to determine whether to comply to Plaintiff’s request within twenty (20) days, excepting Saturdays, Sundays, and legal public holidays. Pursuant to this same provision, Defendant also was required to notify Plaintiff immediately of the determination, the reasons therefore, and the right to appeal any adverse determination to the head of the agency.
Then in Count II, we described the additional violation:
Defendant is in violation of 5 U.S.C. § 552(a)(6)(E)(ii), in that Defendant has failed to make “a determination of whether to provide expedited processing,” which “shall be made, and notice of the determination shall be provided to the person making the request, within 10 days after the date of the request.”
The bottom line of our lawsuit is this: the “Defendant is unlawfully withholding records requested by Plaintiff pursuant to 5 U.S.C. § 552.” The Justice Department’s answer to our suit will be due in about 30 days. We’ll let you know how they respond and keep you informed as our newest lawsuit progresses.
General Lynch has disqualified herself from this critical investigation. She has no business having any involvement in an FBI investigation of this magnitude. We will do, and are doing, everything we can to hold her accountable.
Today’s filing is our fourth major federal lawsuit filed against the Obama Administration over its corruption and failure to comply with FOIA – the law. We’ve filed eight FOIA requests demanding information from: 1) the Obama State Department about the Iran lie, 2) the Department of Homeland Security (DHS) and its components about its “jihad” word purge, 3) the Department of Justice (DOJ) and the FBI over Attorney General Lynch’s secret meeting on a plane with former President Bill Clinton, 4) the FBI and the DOJ regarding its decision to censor the Orlando jihadist’s 911 transcript, 5) the State Department over its funding of an organization that was involved in an attempt to unseat Israel’s Prime Minister, 6) the Obama State Department over its inaction on the ISIS genocide against Christians, 7) DHS and its components over the wrongful granting of citizenship to potential terrorists, and 8) the State Department over apparent pay-to-play collusion with the Clinton Foundation.
We are currently in ongoing litigation against the Obama Administration over the Iran lie, inaction on genocide, collusion with the Clinton Foundation, and now the secret meeting between Attorney General Lynch and former President Bill Clinton. We are also winning in multiple federal lawsuits against the Obama Administration’s IRS over its unlawful targeting of conservatives groups.
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http://www.ca4.uscourts.gov/Opinions/Published/171351.P.pdf
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http://www.ca4.uscourts.gov/Opinions/Published/171351.P.pdf
Ah, again black robed mandarins legislate from the bench. Putting the people without protective details at risk, because virtue signaling is more important than the dirt people who don't live among the elites.
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https://www.conservativereview.com/articles/president-trump-ignore-the-fourth-circuit
Why Trump has a responsibility to ignore the Fourth Circuit
Posted May 25, 2017 05:41 PM by Daniel Horowitz
Immigration Court Judges Republic Judicial travel ban lawsuits no wall no ban immigration protest refugees Protesters hold signs during a demonstration against President Donald Trump's revised travel ban, Monday, May 15, 2017, outside a federal courthouse in Seattle. Ted S. Warren | AP
The Fourth Circuit Court has nullified national sovereignty, but nobody in the political chattering class has answered the most important question: Why should Trump listen and what exactly is he supposed to do (or not do) in abiding by this opinion? There is no valid case or controversy to follow.
What distinguishes a court from a legislature
If Rep. Louie Gohmert, R-Texas, or Sen. Rand Paul, R-Ky., were to don black robes tomorrow and issue judicial orders on flagrantly political issues, would we expect the other branches of government to treat them as the final law of the land – binding over the other two branches of government – more so than when they were sitting in their respective legislative chambers?
Of course not. The other branches, especially if controlled by Democrats, would discard their judicial “opinions” immediately.
Yet, that is – including lower-court judges created by Congress, and not even the Constitution – now having the final say over national sovereignty, immigration, and national security.
Consider this irrationality: Congress can pass a law along party lines, yet we won’t regard that as the law of the land until a court upholds it. Yet, a court can be split along the same party lines – and is unelected and unaccountable – but somehow that is given MORE legitimacy than a legislature.
That’s exactly Thursday in the Fourth Circuit Court of Appeals when 10 Democrat appointees “voted” against Trump’s temporary immigration moratorium, while the three GOP appointees voted for it.
Why not just have elected partisan officials decide political matters instead of unelected ones?
And therein lies the nub of this case. What differentiates a court from a legislature, what prevents the judiciary from becoming a de facto veto over the other two branches on broad national policy – and now even international policy – rather than serving as a separate co-equal branch, is that it can only adjudicate an individual case or controversy with legitimate standing and redressable grievances.
But the notion that their opinion in that individual case would be regarded as binding precedent on a national policy without any opposition is absurd; it philosophically undermines the premise of republican government, checks and balances, and co-equal branches.
Even those who believed in more robust judicial power always assumed that issues of national sovereignty and national security dealing with foreign nationals was beyond the reach of the court. In fact, it was considered settled law for over 100 years.
No standing on second Trump immigration order
In the case before the Fourth Circuit, there was no legitimate case or controversy. There is nothing for Pres. Trump to abide by. As Judge Steven Agee noted in his dissent, the three plaintiffs don’t have valid standing.
Even if we cede the absurd premises (see links below for more on this issue) that American relatives can sue to bring in foreign nationals, that the courts have the right to overturn sovereignty — and that the Establishment Clause applies to hypothetical immigrants — there is no redressable grievance. None of the plaintiffs were actually denied entry.; they merely feared the stigma of Trump’s declaration.
Thus, what relief did the courts grant in this case? And to whom? They can’t “strike down” an executive guidance. They don’t have such power — it has to apply to a tangible case.
Judge Agee explained the conditions for valid standing that differentiates the judicial power from legislative or executive powers as follows:
(1) “the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical”; (2) “there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court”; and (3) “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”
In this case, two of the plaintiffs are Iranian LPRs (lawful permanent residents, i.e. green card holders) who want to bring over their wives from Iran. Both should never have standing (over and beyond the obvious reasons ignored by the courts) because the wife of John Doe No. 1 was never denied yet and her application is still in process, and John Doe No. 3’s wife was actually approved!
Why are they suing? Because they are “being torn apart by this situation and the uncertainty and delay” and the stress and anxiety of feeling like “an outsider.” Thus, there is absolutely no injury-in-fact, even if we agreed foreign nationals somehow have a right to immigrate to America!
Moreover, even if there was a valid case, there is no tangible application of this case that would make the court’s opinion tantamount to “striking down” the policy.
For example, in the first round of litigation on the original order, while the courts were still way out of line, there was a tangible outcome for the Trump administration to follow. They allowed in anyone with a valid visa who was stuck at the airport. But in this case, we are talking about hypothetical future immigrants.
The courts are saying you can’t categorically deny visas from nationals of the listed countries. OK … but what should Trump affirmatively do? Does he now have to bring in everyone? Does he have to bring in the same ratio as any other country?
During every day of every administration, the DHS and State Department deny visas for all sorts of discretionary reasons. There’s no way a court can categorically ban the action of denying visas. So, under which circumstances may the president deny any visa? There is no way to know, which is why he should continue following statute.
Moreover, as I mentioned Thursday morning, as it relates to refugees the court opinion doesn’t make any sense at all. The refugee moratorium wasn’t applied only to “Muslim” countries; it was applied to everyone. So, the plaintiff in this case who had a relative applying for refugee status (this was the third plaintiff, Muhammed “John” Meteab) doesn’t even have a valid Establishment Clause claim, even under their crazy system.
Plus, in this case, the applications for the relatives of this plaintiff were actually approved! So what’s the beef? Meteab claims he “experienced anti-Muslim sentiment and felt very uncomfortable and insecure in their community, causing them acute mental stress.”
But even if we agree with the court that the president, who has full control to set the refugee cap, suddenly cannot categorically shut down refugee resettlement, what exactly is he supposed to do? Does he bring in 50,000 a year … 70,000 … 100,000? How much is “enough”?
Furthermore, parts of the Fourth Circuit Court’s opinion are null and void on their face. As it relates to non-immigrant visas from four of the six countries, 8 U.S. Code §1735 requires the president to cut off visas to state sponsors of terrorism, which at the time of passage in 2002, included five of the seven countries in Trump’s original order.
Thus, there is no excuse for Trump’s secretary of state or DHS secretary not to continue passively denying visas or refugee status to their heart’s content. This is not the same as advocating “not listening to the courts.” (Although that is something that needs to happen anyway, because the courts don’t listen to statutes and the Constitution.) It’s to say that there is no affirmative action to take in accordance with a court order because there is no order and a court can’t issue such an order.
The Trump administration should at least wait for the ACLU to launch another challenge and try to prove that the White House is in some way violating the order. But, in order to do so, they would have to challenge an actual denial of a visa. The problem is that 8 U.S. Code §1201(h)(i) gives customs officers the plenary authority to not only deny issuance of a visa but to revoke one already issued.
What’s more, this provision of law, which passed the Senate 96-2 in 2004, explicitly stripped the courts of any jurisdiction to adjudicate the revocation of visas for anyone seeking entry into the country (as opposed to someone living here who is being deported). The jurisdiction-stripping provision includes even a basic habeas corpus petition. How in the world can the courts be allowed to get involved in this matter?
Perforce, the “executive order” is not a tangible law because the law already gives the executive branch such authority. If the courts are merely saying that Trump can’t make a public declaration that makes American Muslims feel stigmatized (which is essentially the only way they granted standing in this case), then Trump should just rip up the order but proceed to quietly adhere to more or less the same policies.
Any complaints about such a move would, by definition, make the courts a legislature, not a judicial body. And if we can’t , we are no longer a republic worth defending.
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These deeply unsound opinions are pushing the envelope to the point where people are going to ask "How many guns does the court have?" (an effort here to echo Stalin's response to a statement by the Pope "How many divisions does he have?")
"In looking behind the face of the government’s action for facts to show the alleged bad faith, rather than looking for bad faith on the face of the executive action itself, the majority grants itself the power to conduct an extratextual search for evidence suggesting bad faith, which is exactly what three Supreme Court opinions have prohibited. Mandel, Fiallo, and Din have for decades been entirely clear that courts are not free to look behind these sorts of exercises of executive discretion in search of circumstantial evidence of alleged bad faith. The majority, now for the first time, rejects these holdings in favor of its politically desired outcome."
"Considering the Order on its face, as we are required to do by Mandel, Fiallo , and Din , it is entirely without constitutional fault. The Order was a valid exercise of the President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a) to suspend the entry of “any aliens” or “any class of aliens” and to prescribe “reasonable rules, regulations, and orders” regarding entry, so long as the President finds that the aliens’ admission would be detrimental to the interests of the United States.”
This dissent has it exactly right.
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These deeply unsound opinions are pushing the envelope to the point where people are going to ask "How many guns does the court have?" (an effort here to echo Stalin's response to a statement by the Pope "How many divisions does he have?")
The rule of law is dead in this country.
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http://legalinsurrection.com/2017/05/4th-circuit-upholds-injunction-against-trump-revised-travel-executive-order/
4th Circuit upholds injunction against Trump revised travel Executive Order
Posted by William A. Jacobson Thursday, May 25, 2017 at 2:24pm
Executive Order “in context drips with religious intolerance, animus, and discrimination”
https://www.youtube.com/watch?v=npvd-VVqh9Q
The 4th Circuit Court of Appeals, which heard the case en banc, has upheld substantially all of the Maryland District Court injunction against Trump’s revised travel Executive Order in an opinion (pdf.) dripping with politics. (Full embed at bottom of post).
The opinions (including concurring and dissenting) are 200 pages, so it will take some time to digest, but you’ll get the message from the opening paragraph:
“The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order.”
The opinion is so bad, it’s hard to know where to start. Perhaps the best place is this completely foolish statement on page 17:
The Second Executive Order does not include any examples of individuals from Iran, Libya, Sudan, Syria, or Yemen committing terrorism-related offenses in the United States.
Sorry, respected and honored Judges, that’s not your call. That’s the President’s call, and the President doesn’t need to recite examples in an order or wait for people from these countries to engage in terrorism in the U.S. (We know that people from these countries have in fact committed terrorist acts in the U.S., but that’s actually beside the point for the legal analysis. It is not up to the judges.)
The most egregious focus of the majority opinion was relying on Trump’s campaign statements (starting at page 18):
The First and Second Executive Orders were issued against a backdrop of public statements by the President and his advisors and representatives at different points in time, both before and after the election and President Trump’s assumption of office. We now recount certain of those statements….
The Court then goes on for several pages recounting news clippings and campaign statements. This is a task, the dissent correctly pointed out, that will have both a chilling effect on political speech and is legally irrelevant as to a specific Executive Order after taking office. The Court concluded that the national security justifications were a sham (page 52-60):
Based on this evidence, we find that Plaintiffs have more than plausibly alleged that EO-2’s stated national security interest was provided in bad faith, as a pretext for its religious purpose. And having concluded that the “facially legitimate” reason proffered by the government is not “bona fide,” we no longer defer to that reason and instead may “look behind” EO-2….
The evidence in the record, viewed from the standpoint of the reasonable observer, creates a compelling case that EO-2’s primary purpose is religious. Then-candidate Trump’s campaign statements reveal that on numerous occasions, he expressed anti-Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States….
As a candidate, Trump also suggested that he would attempt to circumvent scrutiny of the Muslim ban by formulating it in terms of nationality, rather than religion….
These statements, taken together, provide direct, specific evidence of what motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the United States. The statements also reveal President Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly….
EO-2 cannot be read in isolation from the statements of planning and purpose that accompanied it, particularly in light of the sheer number of statements, their nearly singular source, and the close connection they draw between the proposed Muslim ban and EO-2 itself.
The court concluded (page 69):
EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it. In light of this, we find that the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs. We therefore find that EO-2 likely fails Lemon’s purpose prong in violation of the Establishment Clause.22 Accordingly, we hold that the district court did not err in concluding that Plaintiffs are likely to succeed on the merits of their Establishment Clause claim.
The only part of the lower court injunction that was vacated was that part naming Trump personally:
“In light of the Supreme Court’s clear warning that such relief should be ordered only in the rarest of circumstances we find that the district court erred in issuing an injunction against the President himself. We therefore lift the injunction as to the President only. The court’s preliminary injunction shall otherwise remain fully intact.”
Three Judges (Niemeyer, Shedd, Agee) dissented:
While the [District] court acknowledged the President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a) to enter the Order and also acknowledged that the national security reasons given on the face of the Order were legitimate, the court refused to apply Kleindienst v. Mandel, 408 U.S. 753 (1972), which held that courts are precluded from “look[ing] behind” “facially legitimate and bona fide” exercises of executive discretion in the immigration context to discern other possible purposes, id. at 770. Relying on statements made by candidate Trump during the presidential campaign, the district court construed the Executive Order to be directed against Muslims because of their religion and held therefore that it likely violated the Establishment Clause of the First Amendment.
I conclude that the district court seriously erred (1) by refusing to apply the Supreme Court’s decision in Mandel; (2) by fabricating a new proposition of law — indeed, a new rule — that provides for the consideration of campaign statements to recast a later-issued executive order; and (3) by radically extending Supreme Court Establishment Clause precedents…..
The majority reworks the district court’s analysis by applying Mandel, albeit contrary to its holding, to defer only to the facial legitimacy of the Order but not to its facial bona fides, despite the Mandel Court’s holding that “when the Executive exercises
this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests” of the plaintiffs. Mandel, 408 U.S. at 770 (emphasis added). In addition, the majority, after violating Mandel, then adopts the same new rule of law adopted by the district court to consider candidate Trump’s campaign statements to find the Executive Order’s stated reasons “pretext[ual],” ante at 51, and then to rewrite the Order to find it in violation of the Establishment Clause. This too is unprecedented and unworkable.
The dissent took particular issue with the reliance by the majority on Trump’s campaign statements:
In affirming the district court’s ruling based on the Establishment Clause, the majority looks past the face of the Order’s statements on national security and immigration, which it concedes are neutral in terms of religion, and considers campaign statements made by candidate Trump to conclude that the Order denigrates Islam, in violation of the Establishment Clause. This approach (1) plainly violates the Supreme Court’s directive in Mandel; (2) adopts a new rule of law that uses campaign statements to recast the plain, unambiguous, and religiously neutral text of an executive order; and (3) radically extends the Supreme Court’s Establishment Clause holdings…..
The Supreme Court surely will shudder at the majority’s adoption of this new rule that has no limits or bounds — one that transforms the majority’s criticisms of a candidate’s various campaign statements into a constitutional violation.
More to follow.
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The mind boggles at how wide spread this partisan gibbersish posing as judicial interpretation of law is , , ,
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The mind boggles at how wide spread this partisan gibbersish posing as judicial interpretation of law is , , ,
I couldn't agree more with this statement.
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Lack of Judicial Impartiality Threatens Rule of Law
By Roger Kimball| May 28th, 2017
Why do judges wear black robes? It’s a question few judges today seem to be asking themselves.
It certainly appears not to have troubled the mind of Chief Judge Roger Gregory of the Fourth Circuit Court of Appeals who, it seems, must instead be a student of Jorge Luis Borges. A couple of days ago, Judge Gregory, writing for the majority, upheld a lower court’s decision against President Trump’s revised Executive Order imposing a temporary travel ban from a handful of countries identified as hotbeds of terrorist activity. As Byron York points out, the decision broke 10 to 3 along partisan lines: the 10 judges who decided against the travel ban were appointed by Presidents Clinton or Obama, the 3 judges who supported the ban were appointed by one of the Bushes.
The rank partisanship on display is as disgusting as it is worrisome: a partisan judiciary is not a judicious judiciary. It is, on the contrary, a judiciary that dispenses its decisions based not on what you have done or left undone but on who you are. It is a government of men, not laws.
But the most extraordinary thing about the majority decision is not its partisanship but the personal nature of the opinion it expresses. It applies to Donald Trump and to Donald Trump only. As York notes,
The majority’s decision, as laid out by Gregory, suggests a mind-bending possibility: If the Trump executive order, every single word of it, were issued by another president who had not made such statements on the campaign trail, the court would find it constitutional.
This is where Borges comes in. In “Pierre Menard, Author of Don Quixote,” Borges celebrates the stupendous labor of a man who endeavored to produce a book that would be identical—”word for word and line for line”— to Cervantes’ great novel. Menard never managed more than a fragment. But Borges is surely right that though “the text of Cervantes and that of Menard are verbally identical,” the works are in fact very different. For one thing, what was written in the seventeenth century by a Catholic ex-soldier is of necessity very different from what was written in the twentieth century by a cosmopolitan, world-weary intellectual. Their different personal histories infuse their words with very different assumptions. Then there is the matter of style. “The archaic style of Menard . . . suffers from a certain affectation. Not so that of his precursor, who handles easily the ordinary Spanish of his time.” Borges spins an amusing and thought provoking epistemological tale with this fiction.
Until yesterday, I hadn’t appreciated its application to the workings of the judiciary. Judge Gregory enlightened me about that. In his opinion for the court, Judge Gregory charges that although the travel ban invokes national security, “in context” it “drips with religious intolerance, animus, and discrimination.”
Context, eh? What Judge Gregory means is that Donald Trump, or at least some people associated with Donald Trump’s Presidential campaign, said things about Muslims or other prospective immigrants with which Judge Gregory disagrees. Ergo anything that Donald Trump’s administration orders with respect to immigration is, ipso facto, tainted.
What Trump’s travel ban actually said is unexceptionable. Nor can any candid person doubt the President’s authority to intervene dispositively on who may and who may not enter the United States. The law is unambiguous:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
The majority opinion of the Fourth Circuit makes explicit what was already implicit in the lower court interventions against the administration’s efforts to “improve the screening and vetting protocols” in order to “protect the nation from foreign terrorist entry into the United States.” At issue is not the Constitutionality of the Executive Order but the person of Donald Trump. The effect of the ruling, as Andrew McCarthy observes, is to empower “both radical Islam and judicial imperialism.” In the immediate aftermath of yet another bloody jihadist attack—this one in Manchester, England—it is natural that we think mostly about the former, about the way the Fourth Circuit’s ruling makes us less safe by empowering radical Islam. Should we suffer another Orlando or San Berardino here, we can lay at least part of the blame at the doorstep of judges like Roger Gregory.
The harm such judicial supremacists do goes far beyond their particular rulings. It erodes the one thing that guarantees the place of the judiciary in a free society: widespread trust in the legitimacy, which is to say, the impartiality of its operation.
But although terrorism is certainly a legitimate and a pressing concern, in some ways it is McCarthy’s second item, the empowering of judicial imperialism or judicial supremacy, that is the bigger long-term concern. For what these recent decisions portend—the temporary restraining orders issued by left-leaning, blue-state District Judges as well as the Fourth Circuit’s en banc ruling—is an attack on the Constitutional separation of powers via an assertion of judicial triumphalism. And this brings me to my opening question: Why do judges wear fancy black robes? Former Associate Justice Sandra Day O’Connor, pondering that question, suggested that the attire “shows that all of us judges are engaged in upholding the Constitution and the rule of law. We have a common responsibility.”
I think that’s about right. The somber black robes attest to the impartial majesty of the law.
But what happens if those wearing the robes betray that trust, that “common responsibility” to uphold the Constitution and the rule of law? Alexander Hamilton famously, and perhaps naively, described the judiciary as “the least dangerous branch,” reasoning that since the Court commanded neither money (as did Congress) nor the army (as did the Executive), therefore the Court would have to rely not on coercive power but merely the impressive spectacle of what Hamilton called “judgment.”
We’ve had plenty of experience to show us how drastically Hamilton underestimated the threat of an unfettered judiciary. It is worth reminding ourselves that several of his contemporaries were not so starry eyed about the Court. One of the anti-Federalists, for example, warned that the Constitution did not provide an effective mechanism for reining in judicial arrogance.
There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.
That, I submit, is pretty much where we are with judges like Roger Gregory. The harm such judicial supremacists do goes far beyond their particular rulings. It erodes the one thing that guarantees the place of the judiciary in a free society: widespread trust in the legitimacy, which is to say, the impartiality of its operation. The black robes are a symbol of that trust and the majesty that imbues it. The Fourth Circuit has just violated that trust in the most brutal and cavalier fashion, threatening to transform those somber black robes from an emblem of high office into costume worn by impersonators.
To this extent, Hamilton was right: in our society the respect of the judiciary depends not on its deployment of coercion but prestige. As Glenn Reynolds observed in commenting on this deeply misguided ruling by the Fourth Circuit, “The judiciary’s prestige-well is going to dry up pretty fast at this rate.” And then?
About the Author: Roger Kimball
Roger Kimball
Roger Kimball is Editor and Publisher of The New Criterion and President and Publisher of Encounter Books. Mr. Kimball lectures widely and has appeared on national radio and television programs as well as the BBC. He is represented by Writers' Representatives, who can provide details about booking him. Mr. Kimball's latest book is The Fortunes of Permanence: Culture and Anarchy in an Age of Amnesia (St. Augustine's Press, 2012). He is also the author of The Rape of the Masters (Encounter), Lives of the Mind: The Use and Abuse of Intelligence from Hegel to Wodehouse (Ivan R. Dee), and Art's Prospect: The Challenge of Tradition in an Age of Celebrity (Ivan R. Dee). Other titles by Mr. Kimball include The Long March: How the Cultural Revolution of the 1960s Changed America (Encounter) and Experiments Against Reality: The Fate of Culture in the Postmodern Age (Ivan R. Dee). Mr. Kimball is also the author ofTenured Radicals: How Politics Has Corrupted Our Higher Education (HarperCollins). A new edition of Tenured Radicals, revised and expanded, was published by Ivan R. Dee in 2008. Mr. Kimball is a frequent contributor to many publications here and in England, including The New Criterion, The Times Literary Supplement, Modern Painters, Literary Review, The Wall Street Journal, The Public Interest, Commentary, The Spectator, The New York Times Book Review, The Sunday Telegraph, The American Spectator, The Weekly Standard, National Review, and The National Interest.
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Exactly so!
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I certainly would not wish her ill health in order to vacate her seat but her health has been and is an issue:
Ginsburg was diagnosed with colon cancer in 1999 and underwent surgery followed by chemotherapy and radiation therapy. During the process, she did not miss a day on the bench.[97] Physically weakened after the cancer treatment, Ginsburg began working with a personal trainer. Since 1999, Bryant Johnson, a former Army reservist attached to the Special Forces, has trained Ginsburg twice weekly in the justices-only gym at the Supreme Court.[98][99] In spite of her small stature, Ginsburg saw her physical fitness improve since her first bout with cancer, being able to complete twenty full push-ups in a session before her 80th birthday.[98][100]
On February 5, 2009, she again underwent surgery related to pancreatic cancer.[101] Ginsburg's tumor was discovered at an early stage.[101] She was released from a New York City hospital on February 13 and returned to the bench when the Supreme Court went back into session on February 23, 2009.[102][103][104] On September 24, 2009, Ginsburg was hospitalized in Washington DC for lightheadedness following an outpatient treatment for iron deficiency and was released the following day.[105]
On November 26, 2014, she had a stent placed in her right coronary artery after experiencing discomfort while exercising in the Supreme Court gym with her personal trainer.[106][107]
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https://www.conservativereview.com/articles/why-do-you-have-to-show-photo-id-for-everything-except-voting
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The ABA Jumps the Shark
Why did the group ask where a judicial nominee’s children went to school?
Leonard Steven Grasz testifies during a Senate hearing on Capitol Hill, Nov. 1.
Leonard Steven Grasz testifies during a Senate hearing on Capitol Hill, Nov. 1. Photo: Tom Williams/Zuma Press
By William McGurn
Nov. 13, 2017 6:21 p.m. ET
241 COMMENTS
Looks as if the American Bar Association picked the wrong judicial nominee to play politics with. If Republicans on the Senate Judiciary Committee are smart, they will use the ABA’s appearance at a hearing Wednesday to call the group out.
The object of the ABA’s attention is Leonard Steven Grasz, a former Nebraska chief deputy attorney general who’s been nominated for the a seat on the Eighth U.S. Circuit Court of Appeals. The ABA has slapped Mr. Grasz with a “not qualified” rating, saying he’s too biased and too rude to be a judge. Given that much of this rating is based on accusations that are not detailed and from accusers who remain anonymous, it reveals more about the organization that issued it than it does about Mr. Grasz.
“The ABA is running a smear campaign based on the idea that Steve is a kale-hating, puppy-kicking monster,” says a fellow Nebraskan, Republican Sen. Ben Sasse. “But no one in Nebraska on either side of the aisle recognizes that man.”
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Main Street Columnist Bill McGurn on the real reason the legal association objects to a Trump judicial nominee. Photo Credit: AmericanBar.org.
The ABA says its ratings are based on neutral and professional criteria, much the way a medical board might evaluate a doctor. Since President Eisenhower “first invited the ABA into the process,” the group says, it’s been standard practice for presidents to submit their judicial candidates to the ABA for vetting before announcing a nomination.
Well, yes and no. In just one indication of how politicized the ABA ratings have become, Democrats and Republicans long ago diverged on the ABA’s role in the nominations process. In 2001, George W. Bush halted the practice of giving the ABA first crack at vetting potential nominees; in 2009 Barack Obama revived it; and this year President Trump halted it again.
Yet even without an official role, the ABA ratings still exert undue influence on nominations. For the real signal sent by a “not qualified” rating is: This guy is a Neanderthal. That in turn allows the press to portray a nominee as out of the mainstream, and it can siphon off confirmation votes from Republican senators nervous about the rating.
That’s plainly what the ABA hopes for Mr. Grasz. The ABA’s statement makes clear his “not qualified” rating is based on two broad worries: his “passionately held social agenda” and complaints that he’s been “gratuitously rude.”
By “passionately held social agenda,” the ABA means abortion; in his prior life Mr. Grasz defended—as a state deputy attorney general is obliged to do—a Nebraska ban on partial-birth abortion. What it means by “rude” no one knows, because the ABA has thrown this out there while providing almost no specifics. For good measure, the ABA has twisted a two-decade-old law review article to suggest Mr. Grasz rejects a point he explicitly states, to wit, that judges are bound by clear legal precedent—even when “it may seem unwise or even morally repugnant.”
So Wednesday’s hearings offer Republicans an excellent opening to press ABA officials on how they came to their “not qualified” rating. Here’s a few suggestions:
• Why did the ABA ask where Mr. Grasz’s children went to school? Does the ABA believe their Lutheran education affects his fitness as a judge?
• Is it ever appropriate for an ABA interviewer to refer to “you people,” as Mr. Grasz’s did? When Mr. Grasz asked for clarification, the interviewer said he meant “Republicans and conservatives.” Has the ABA ever referred to “you people” when interviewing a Democratic nominee?
• The ABA has taken positions on many of the most contentious issues before the courts these days, from abortion to guns to same-sex marriage. How can a Republican judicial nominee have confidence these ABA positions will not adversely affect the ABA’s rating?
The questions are particularly compelling given that the Mr. Grasz who testified at his confirmation hearing earlier this month bears no resemblance to the knuckle-dragger the ABA is making him out to be. So it’s crucial Republicans keep the focus on the ABA and not let the hearing become yet another stage for anonymous accusations against Mr. Grasz—especially because he won’t be there to defend himself.
The best revenge, of course, is getting this man confirmed notwithstanding his ABA rating. But the day after the attacks on Mr. Grasz at his hearing, Mr. Sasse delivered an impassioned speech on the Senate floor, raising an even larger question: Since when did the Senate accept the idea that its members should outsource to a third party their constitutional responsibility to evaluate the fitness of the president’s nominees to the federal bench?
“There’s nothing wrong with a liberal organization such as the ABA using its First Amendment rights to push its political agenda,” says Mr. Sasse. “What’s wrong is to allow it to masquerade as fair and impartial arbiter—and give it a special role in the process.”
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http://www.dickmorris.com/holder-the-hypocrite-got-marc-rich-pardoned-but-hits-trumps-pardon-of-dsouza-lunch-alert/?utm_source=dmreports&utm_medium=dmreports&utm_campaign=dmreports
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Like a good lib she will hang on till the next Democrat President.
she will be like Stephen Hawking sitting on the bench in a wheelchair speaking through some electronic mouthpiece on a ventilator
with doctors on each side ready to defibrillate at a seconds notice courtesy of the DNC
https://www.breitbart.com/big-government/2018/07/30/ruth-bader-ginsburg-wants-to-serve-at-least-five-more-years-on-supreme-court/
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Like a good lib she will hang on till the next Democrat President.
she will be like Stephen Hawking sitting on the bench in a wheelchair speaking through some electronic mouthpiece on a ventilator
with doctors on each side ready to defibrillate at a seconds notice courtesy of the DNC
https://www.breitbart.com/big-government/2018/07/30/ruth-bader-ginsburg-wants-to-serve-at-least-five-more-years-on-supreme-court/
Leftist outcome-based judicial activism, her life's work would be lost in vain if she were to be replaced by a constitutionalist.
5 years? Why would she rather be replaced in Donald Trump's second term?
Unfortunately for all of us, mortality is not negotiable.
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Like a good lib she will hang on till the next Democrat President.
she will be like Stephen Hawking sitting on the bench in a wheelchair speaking through some electronic mouthpiece on a ventilator
with doctors on each side ready to defibrillate at a seconds notice courtesy of the DNC
https://www.breitbart.com/big-government/2018/07/30/ruth-bader-ginsburg-wants-to-serve-at-least-five-more-years-on-supreme-court/
Leftist outcome-based judicial activism, her life's work would be lost in vain if she were to be replaced by a constitutionalist.
5 years? Why would she rather be replaced in Donald Trump's second term?
Unfortunately for all of us, mortality is not negotiable.
Only the good die young, so she has that going for her.
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Obama mandates are blocked from being reversed by Trump through lawyers using the court system to stop his policies
https://www.conservativereview.com/news/according-to-judges-trump-is-bound-by-obama-not-the-law-and-the-constitution/
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https://www.nationalreview.com/2018/10/civil-forfeiture-laws-mississippi-needs-transparency/
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on how to limit the Supreme Court now that we have 2 more conservative Justices:
https://www.yahoo.com/news/kavanaugh-gorsuch-confirmations-force-progressives-160757502.html
no stopping these liberals .
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http://click1.email.thehill.com/ViewMessage.do
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Sounds good:
https://www.breitbart.com/politics/2019/04/03/senate-republicans-trigger-nuclear-option-to-speed-up-approval-of-trump-nominees/
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https://bigleaguepolitics.com/senate-democrats-kavanaugh-poll-blows-up-in-their-faces/
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https://www.politico.com/story/2019/05/20/judge-upholds-dem-subpoena-for-trump-financial-records-1335370
surprise surprise surprise
I would like to hear from some truly objective legal mind on this .
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Well, I'm not objective but FWIW my take is that I get the President's frustration and anger with all of this, but suspect the Congress has the better argument here.
My guess is that being the seasoned participant in lawfare that he is, Trump knows this and hopes to litigate this past 2020. From the sounds of this decision he may not get there.
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https://www.politico.com/story/2019/05/20/judge-upholds-dem-subpoena-for-trump-financial-records-1335370
surprise surprise surprise
I would like to hear from some truly objective legal mind on this .
I can't give you the legal-eeze but you can't just target innocent people and we are all presumed innocent. The special counsel breaks that principle. In the case of the latest special counsel, someone, Rosenstein, was (falsely) saying their was cause. Ask GM but a search warrant requires probable cause. What level cause does a subpoena require? Fishing expeditions are outside of the law.
Dems argument is that all Presidential candidates lately have been releasing their tax returns. So what? Romney released his. They were squeaky clean and he was ripped for everything in them anyway. Trump did not release his. The constitution, Article II, says President must be 35 and natural born citizen. You can add release of tax returns to that by passing an amendment to the constitution, not by saying everyone else is doing it.
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victim white
alleged killer black
southern state
must be victim of racism so death penalty overturned:
https://www.conservativereview.com/news/thomas-dissent-rips-kavanaugh-scotus-opinion-racial-politics/
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and by doing so can't think straight
and is thus partisan :
https://www.nationalreview.com/2019/06/supreme-court-decisions-gerrymandering-right-census-wrong/
We on the Right have a BIG PROBLEM
with this justice
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and by doing so can't think straight
and is thus partisan :
https://www.nationalreview.com/2019/06/supreme-court-decisions-gerrymandering-right-census-wrong/
We on the Right have a BIG PROBLEM
with this justice
Deep state has hooks in him.
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https://www.breitbart.com/politics/2019/07/08/gov-cuomo-signs-bill-release-trump-state-tax-returns/#
this is clearly a law to get one person
the excuse is of course it could be used against any politician in with NY tax returns
but in a Democrat controlled mob state who thinks they would use this for Democrat pols and not as a political weapon
Would love the SCOTUS to rule on this one.
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very often shake downs of trivial cases that provide plaintiffs with nothing :
https://www.nationalreview.com/2019/11/conservative-case-for-class-action-suits-not-convincing-not-conservative/
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https://www.newsmax.com/t/newsmax/article/947594/1
Thou shall not defend ANY REPUBLICAN
my response
screw martha's vineyard
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I get the logic, but witness intimidation seems a possibility here , , ,
https://www.breitbart.com/politics/2019/12/26/new-york-to-allow-accused-criminals-to-inspect-own-crime-scenes-quickly-obtain-witness-names/?utm_source=newsletter&utm_medium=email&utm_term=best_of_the_week&utm_campaign=20191228
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I get the logic, but witness intimidation seems a possibility here , , ,
https://www.breitbart.com/politics/2019/12/26/new-york-to-allow-accused-criminals-to-inspect-own-crime-scenes-quickly-obtain-witness-names/?utm_source=newsletter&utm_medium=email&utm_term=best_of_the_week&utm_campaign=20191228
The public needs to understand that they cannot expect that the system to protect them at all.
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"For example, if an individual is charged with home burglary, the suspect will be allowed to return to the victim’s home and inspect their property as part of their defense."
Get out of here !!!! :((
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textualism?
is this not another name for living and. breathing document?
https://pjmedia.com/columns/paula-bolyard/2020/06/17/sen-hawley-reveals-d-c-s-dirty-little-secret-and-the-real-reason-scotus-super-legislators-redefined-sex-in-federal-law-n542134
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roberts again:
https://apnews.com/4901a69e2fb198705ab4f5370b28810a
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I wonder how au jus teece
Roberts would rule on this kind of discrimination if this ever came before SCOTUS:
https://www.breitbart.com/politics/2020/06/18/tucker-carlson-atlanta-officer-garrett-rolfes-stepmother-was-fired/
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could not find lawfare thread so put here:
https://www.breitbart.com/clips/2021/06/27/dershowitz-on-giuliani-law-license-suspension-equal-justice-for-all-mortally-wounded/
"We have case after case after case where prosecutors, defense attorneys, lawyers of every kind, have made statements … which turn out to be untrue, and they’re never disbarred. And certainly not without a hearing. And so, this is a first. … "
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Think of all the black victims of his drugging and raping:
https://www.reuters.com/world/us/bill-cosbys-sexual-assault-conviction-is-overturned-2021-06-30/
or of course what about all the gangland victims for that matter
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I confess to cynicism about the accusations against Cosby.
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https://www.nationalreview.com/news/judge-vacates-convictions-of-two-men-convicted-of-killing-malcolm-x/?utm_source=email&utm_medium=breaking&utm_campaign=newstrack&utm_term=25753531
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Does "blue" mean she is a Democrat ?
https://dailycaller.com/2021/12/17/john-kennedy-grills-anne-traum-judicial-court-nomination/
her avoiding a yes or no answer speaks for itself.
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https://www.newsmax.com/newsfront/george-soros-district-attorneys-crime/2022/08/01/id/1081299/
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Yo Crafty, at least AIs aren't swinging a stick. Yet.
From the paper:
Better Call GPT, Comparing Large Language Models Against Lawyers
LAUREN MARTIN, NICK WHITEHOUSE, STEPHANIE YIU, LIZZIE CATTERSON, RIVINDU PERERA, AI Center of Excellence, Onit Inc., New Zealand
This paper presents a groundbreaking comparison between Large Language Models (LLMs) and traditional legal contract review- ers—Junior Lawyers and Legal Process Outsourcers (LPOs). We dissect whether LLMs can outperform humans in accuracy, speed, and cost-efficiency during contract review. Our empirical analysis benchmarks LLMs against a ground truth set by Senior Lawyers, uncovering that advanced models match or exceed human accuracy in determining legal issues. In speed, LLMs complete reviews in mere seconds, eclipsing the hours required by their human counterparts. Cost-wise, LLMs operate at a fraction of the price, offering a staggering 99.97 percent reduction in cost over traditional methods. These results are not just statistics—they signal a seismic shift in legal practice. LLMs stand poised to disrupt the legal industry, enhancing accessibility and efficiency of legal services. Our research asserts that the era of LLM dominance in legal contract review is upon us, challenging the status quo and calling for a reimagined future of legal workflows.
https://arxiv.org/pdf/2401.16212.pdf
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This is revolutionary for the business of law!!!
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I'm somewhat surprised to see this, given how so many members of the ABA are members of the Trial Lawyers Association and such:
[Josh Blackman] Today in Supreme Court History: February 10, 1967
The Volokh Conspiracy / 2h
2/10/1967: The 25th Amendment is ratified. The post Today in Supreme Court History: February 10, 1967 appeared first on Reason.com .
YESTERDAY
“It’s going be a free-for-all in the country if they allow Colorado to get away with” keeping Trump off the ballot
Le·gal In·sur·rec·tion / 11h
My appearance on Chicago's Morning Answer talking about the SCOTUS Colorado oral argument and the Special Counsel report about Biden being an “Elderly Man With a Poor Memory” The post first appeared on Le·gal In·sur·rec·tion .
Biden Treasury Admits Giving Banks Terms Like ‘MAGA’ for Private Bank Transaction Searches
Yellen dodges questions on Treasury surveillance
•Le·gal In·sur·rec·tion / 14h
Other terms and words included Schumer, Pelosi, ANTIFA, and storm the Capitol. The post first appeared on Le·gal In·sur·rec·tion .
[Josh Blackman] Oral Arguments in Trump v. Anderson Part IV: Justice Sotomayor and Kagan get the line between national power and federalism
The Volokh Conspiracy / 14h
[The states do not need Section 3 to impose qualifications on state-created positions. But only the national government should decide questions about the President. ] [This is the four installment in a series about the oral argument in Trump v. Anderson . The first installment focused on Justice Gorsuch's colloquies about Officers of the United States." The second installment focused on Justice J
Authorities Arrest Illegal Immigrant Teen From Venezuela for Times Square Shooting
Teen migrant arrested for Times Square shooting
•Le·gal In·sur·rec·tion / 15h
Jesus Alejandro Rivas-Figueroa, a 15-year-old illegal immigrant from Venezuela, is also a suspect in an armed robbery in the Bronx The post first appeared on Le·gal In·sur·rec·tion .
[Eugene Volokh] Associational Standing Isn't Defeated by Pseudonymity in Members' Declarations
The Volokh Conspiracy / 15h
From today's Tenth Circuit decision in Speech First, Inc. v. Shrum , written by Judge Harris Hartz and joined by Judges Nancy Moritz and Veronica Rossman: Speech First, Inc. is a nationwide organization that describes its mission to include the protection of free speech on college and university campuses. When Oklahoma State University (OSU) implemented three schoolwide policies that allegedly ch
[Eugene Volokh] Students Don't Have Right to Lie About Administrators
The Volokh Conspiracy / 16h
From Judge Robert Jonker's opinion today in Ashton v. Okemos Public Schools (W.D. Mich.): [Plaintiff's] daughter, E.B., served a time-limited expulsion from her high school after she lied to her parents and to the police about her interaction at school with an administrator and tried to get another student to back her false story. E.B. actually admits she falsely accused the administrator but Pla
[Josh Blackman] Oral Arguments in Trump v. Anderson Part III: Justice Kavanaugh Gets Griffin's Case and Justice Barrett gets FedCourts
The Volokh Conspiracy / 16h
[Why did Jonathan Mitchell not vigorously defend Griffin's Case and Chief Justice Chase? And Mitchell missed Justice Barrett's question about direct/collateral challenges due to his refusal to accept the sword-shield dichotomy.] [This is the third installment in a series about the oral argument in Trump v. Anderson . The first installment focused on Justice Gorsuch's colloquies about Officers of
[John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions
The Volokh Conspiracy / 16h
[Citizen Trump, political chalking, and rough business.] Please enjoy the latest edition of Short Circuit , a weekly feature written by a bunch of people at the Institute for Justice. New case! Just as Peter and Annica Quakenbush were about to open a conservation burial ground (or green cemetery) on their heavily forested property in rural Michigan, local officials passed an ordinance banning cem
[Josh Blackman] Oral Arguments in Trump v. Anderson Part II: Justice Jackson Gets "Office under the United States"
The Volokh Conspiracy / 16h
[Justice Jackson explained that an ambiguous text should be interpreted in favor of expanding democracy. But Mitchells' concern about Foreign Emoluments Clause "boomerang" could have cut off a path of complete victory.] [This is the second installment in a series about the oral argument in Trump v. Anderson . The first installment focused on Justice Gorsuch's colloquies about "Officers of the Uni
[Josh Blackman] Oral Arguments in Trump v. Anderson Part I: Justice Gorsuch Gets "Officers of the United States"
The Volokh Conspiracy / 16h
[Justice Gorsuch demonstrates that he is the Court's most careful, consistent textualist.] [This post will be the first installment in a series about oral argument in Trump v. Anderson .] I'll put my cards on the table: I was very critical of Justice Gorsuch's decision in Bostock . To be clear, I did not disagree with his textualist methodology. Rather, I disagreed with how he applied it. Specifi
[Eugene Volokh] If Lawyer Representing Himself Is "Unable to Keep His Personal Feelings out of His Pleadings and the Way He Litigates This Case,"
The Volokh Conspiracy / 16h
["he might want to consider hiring an attorney to represent him in this case."] From Judge Kent Wetherell's decision yesterday in Kassenoff v. Harvey (N.D. Fla.) (for a news article with more background on the case, see here ): Plaintiff [Allan Kassenoff] is a lawyer from New York. Defendant [Robbie Harvey] is a "social media influencer" from Pensacola, Florida, with millions of followers on TikT
[Jonathan H. Adler] Climate Scientist Michael Mann Wins Defamation Suit Against Mark Steyn and Rand Simberg
Climate defamation trial intensifies
•The Volokh Conspiracy / 16h
[The jury found no real damages, but gave a sizeable punitive award that could be challenged on appeal. ] Yesterday, a jury in the District of Columbia ruled for climate scientist Michael Mann in his long-running defamation suit against writers Mark Steyn and Rand Simberg, for blog posts the two had written challenging the validity of his research and comparing Penn State's investigation into Man
[Jonathan H. Adler] While Attention Was on Oral Argument in Trump v. Anderson, the Supreme Court Issued Two Opinions
The Volokh Conspiracy / 16h
[Things you may have missed between the Trump disqualification case, Biden special counsel report, and NBA trade deadline.] The oral argument in Trump v. Anderson was not the only activity at the Supreme Court yesterday. The Court also issued opinions in two argued cases—the second and third decisions to be released this term. In Department of Agriculture Rural Development Rural Housing Service v
[Josh Blackman] Today in Supreme Court History: February 9, 1937
The Volokh Conspiracy / 16h
2/9/1937: NLRB v. Jones & Laughlin Steel Corp. argued. The post Today in Supreme Court History: February 9, 1937 appeared first on Reason.com .
:@WilliamBaude: Is Congress A "Backstop"?
The Volokh Conspiracy / 16h
[Note: This is the tenth and hopefully the last – at least for now; we won't promise that we won't ever write more on this topic! – in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first nine essays can be found here , here , here , here , here , here , here , here , and here .] Since last fall, when our article The Sweep and F
[Eugene Volokh] Thursday Open Thread
The Volokh Conspiracy / 16h
[What's on your mind?] The post Thursday Open Thread appeared first on Reason.com .
[Steven Calabresi] Offices Under the United States and the Oral Argument in Trump v. Anderson
The Volokh Conspiracy / 16h
[Section 3 of the Fourteenth Amendment and the Incompatibility Clause both apply to "officers under the United States" and must thus mean the same thing] The oral argument today in Trump v. Anderson strongly suggests a Trump victory on the grounds advanced heroically by Josh Blackman and Seth Barrett Tillman. Many kudos to them both for the long and successful campaign that they have waged. The C
[Ilya Somin] Thoughts on the Supreme Court Oral Argument in the Trump Section 3 Case
The Volokh Conspiracy / 16h
[The justices might well overrule the Colorado Supreme Court on the grounds that only Congress has power to enforce Section 3 of the 14th Amendment. Such a ruling would be a serious mistake.] (Wikimedia) Today's Supreme Court oral argument in Trump v. Anderson overwhelmingly focused on the issue of whether Section 3 of the Fourteenth Amendment is "self-executing," that is whether states can enfor
[Josh Blackman] Attending Oral Argument in Trump v. Anderson
The Volokh Conspiracy / 16h
[Not exactly what I expected, but a very rewarding experience. ] As regular readers will know, Seth Barrett Tillman and I have spent untold hours over the past six months, and really past three years, on Section 3. But when I walked into the Supreme Court this morning, I felt a sense of closure. All of the arguments that had to be made were made–Seth and I were up till about 10:30 pm last night,
[Eugene Volokh] "Seven Questions on Section 3: A Response to Professor Kurt Lash"
The Volokh Conspiracy / 16h
[A reply to Prof. Kurt Lash's response to the brief by Profs. Akhil Amar & Vikram Amar.] I asked Prof. Akhil Amar whether he was inclined to respond to Prof. Lash's response to the Amar brothers' amicus brief in Trump v. Anderson , and Prof. Amar suggested that I might publish a reply by Prof. Amar's research assistants at Yale Law School (Arshan Barzani, Samarth Desai, Jacob Hutt, and Jordan Kei
[Ilya Somin] C-SPAN Washington Journal Appearance on the Trump Section 3 Case
The Volokh Conspiracy / 16h
[Co-blogger Josh Blackman and I debated the case that will be argued before the Supreme Court this morning.] (Joe Ravi/Wikimedia/CC-BY-SA 3.0) Today, the Supreme Court will hold oral arguments in Trump v. Anderson , the case addressing whether Donald Trump is disqualified from the presidency under Section 3 of the Fourteenth Amendment. Co-blogger Josh Blackman and I discussed and debated the case
[Josh Blackman] Today in Supreme Court History: February 8, 1941
The Volokh Conspiracy / 16h
2/8/1941: Justice Willis Van Devanter dies. Justice Willis Van Devanter The post Today in Supreme Court History: February 8, 1941 appeared first on Reason.com .
:@WilliamBaude: The Facts Matter, Trials Matter, The Record Matters
The Volokh Conspiracy / 16h
[Note: This is the ninth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first eight essays can be found here , here , here , here , here , here , here , and here .] A question regularly raised about our interpretation and explication of Section Three is how its rules might bear on various different factual patterns, real or i
[Steven Calabresi] Trump v. Anderson, Professor Akhil Reed Amar, and the Constitutionality of the Presidential Succession Act
The Volokh Conspiracy / 16h
[Professor Amar's argument renders the presidential succession acts of 1792 and 1947 unconstitutional by barring putting the Speaker of the House of Representatives and the President Pro Temper of the Senate in the line of succession to the presidency] Professors Akhil Reed Amar and David Vikram Amar argue that President Donald Trump is covered by the phrase in the Fourteenth Amendment, Section 3
[Josh Blackman] All Blackman-Tillman Articles, Presentations, Amicus Briefs, Commentary, and Blog posts on Section 3 and Insurrection
The Volokh Conspiracy / 16h
[We started thinking about the topic on January 6, 2021, and have been writing since.] [This post is co-authored with Professor Seth Barrett Tillman] After the 2020 Presidential Election, we thought that we were done with pressing debates with a litigation-focus about the Constitution's "office"- and "officer"-language. The Emoluments Clauses litigation, which stretched for the entirety of Presid
[Josh Blackman] A Reply to Peter Keisler and Richard Bernstein, and Michael Luttig, on Section 3
The Volokh Conspiracy / 16h
[Keisler and Bernstein contradicted Luttig's position.] [This post is co-authored with Professor Seth Barrett Tillman] Michael Luttig, who served on the U.S. Court of Appeals for the Fourth Circuit, and as General Counsel of Boeing, has been one of the more vocal proponents of the view that Trump should be disqualified from the ballot. On January 29, Luttig was the lead signatory of an amicus bri
[Samuel Bray] Universal Injunctions, Congressional Capacity, and Filibuster Reform
The Volokh Conspiracy / 16h
Today I participated in a Rappaport Forum discussion at Harvard Law School titled "Rule by One Judge: The Question of Universal Injunctions." My fellow participant was Professor Mila Sohoni, and our moderator was Professor Guy-Uriel Charles. It was an excellent discussion, and you can watch it here . Two of the students who attended sent me this very interesting note afterwards, which I am postin
[Eugene Volokh] $25M in Libel Damages Based on Newspapers' Misidentification of Plaintiff as Broadcaster Who Used Racial Slurs
The Volokh Conspiracy / 16h
CBS News reports on Monday's verdict ($5M in actual damages and $20M in punitives), in Sapulpa v. Gannett Co. : The incident occurred in 2021 before the Norman-Midwest City girls high school basketball game when an announcer for a livestream cursed and called one team by a racial epithet as the players kneeled during the national anthem. The broadcasters told their listeners on the livestream tha
[Josh Blackman] Video: Heritage Panel on Section 3 Case
The Volokh Conspiracy / 16h
["The Legal Issues Behind the Colorado Ballot Disqualification Case"] Today, I spoke on a panel at the Heritage Foundation about Trump v. Anderson , the Section 3 case. My remarks begin around 44:45. The post Video: Heritage Panel on Section 3 Case appeared first on Reason.com .
:@WilliamBaude: The Objection That It Is Too Soon To Adjudicate Trump's Qualifications
The Volokh Conspiracy / 16h
[Note: This is the eighth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first seven essays can be found here , here , here , here , here , here and here .] Another quasi-jurisdictional objection that has been made to the state ballot access litigation in particular is the argument that it is too soon to decide whether Donald
[Jonathan H. Adler] Jack Goldsmith on Why SCOTUS Should Review the D.C. Circuit's Decision on Presidential Immunity
The Volokh Conspiracy / 16h
[The case raises an issue of high importance and the opinion may contain some loose reasoning.] I have a generally favorable view of the U.S. Court of Appeals decision in United States v. Trump , concluding that Donald Trump does not have absolute immunity from prosecution for his actions seeking to overturn the 2020 presidential election results. The 57-page opinion is careful and thorough, and
[Josh Blackman] Tillman in the Times: "A Legal Outsider, an Offbeat Theory and the Fate of the 2024 Election"
The Volokh Conspiracy / 16h
["When the Supreme Court considers whether Donald J. Trump is barred from appearing on Colorado’s ballot, a professor’s scholarship, long relegated to the fringes, will take center stage."] Tomorrow, the Supreme Court will hear oral argument in Trump v. Anderson . Both Seth Barrett Tillman and I will be attending. Today, the New York Times published a profile of Seth, and his important work that
[Keith E. Whittington] A Call for Institutional Neutrality
The Volokh Conspiracy / 16h
[An open letter released today from the AFA, HxA, and FIRE] Today the Academic Freedom Alliance , Heterodox Academy , and the Foundation for Individual Rights and Expression released a joint open letter calling for universities to adopt a policy of institutional neutrality. From the letter: A useful maxim to guide decision makers is "if an academic institution is not required to adopt a position
:@WilliamBaude: Section Three Is Not A "Political Question"
The Volokh Conspiracy / 16h
[Note: This is the seventh in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first six essays can be found here , here , here , here , here , and here .] Are questions of the proper legal interpretation and application of Section Three of the Fourteenth Amendment nonjusticiable "political questions" – that is, questions that fed
[Josh Blackman] Today in Supreme Court History: February 7, 1870
The Volokh Conspiracy / 16h
2/7/1870: Hepburn v. Griswold decided. The post Today in Supreme Court History: February 7, 1870 appeared first on Reason.com .
[Eugene Volokh] ABA Adopts New Academic Freedom / Freedom of Expression Requirement for Law School Accreditation
ABA requires law schools' academic freedom
•The Volokh Conspiracy / 16h
This apparently just happened; here's the full American Bar Association standard (and see this ABA Journal article ): Standard 208: Academic Freedom and Freedom of Expression [a] A law school shall adopt, publish, and adhere to written policies that protect academic freedom. A law school's academic freedom policies shall: [1] Apply to all full and part-time faculty, as well as to all others teac
[Eugene Volokh] Young Kansas City Chiefs Fan Sues Deadspin Over Racism Allegations
Young Chiefs fan sues Deadspin
•84The Volokh Conspiracy / 16h
From the Complaint filed today in Armenta v. G/O Media Inc. (Del. Super. Ct.): Nine-year-old H.A. loves the Kansas City Chiefs—and he loves his family's Chumash-Indian heritage. On November 26, 2023, H.A. displayed that love by attending the Chiefs-Raiders NFL football game wearing a Chiefs jersey and necklace, his face painted half-red and half-black, and a costume headdress— just as Chiefs fans
[Eugene Volokh] Prof. Michael McConnell: "'Narrow' or 'Sweeping'—What Does Originalist Evidence Have to Say?"
The Volokh Conspiracy / 16h
I'm delighted to pass along this item from Prof. McConnell (Stanford), one of the leading American originalist scholars: I most often agree with my good friends and casebook co-authors Will Baude and Michael Paulsen on matters of constitutional interpretation. But not about the attempted disqualification of Donald Trump for running for President. My friends published the opening salvo in the curr
[Eugene Volokh] Court Upholds Disbarment of Lawyer for In-Court Misconduct, Including Lawyers' Allegations of Anti-Female, Anti-Disabled, and Pro-Jewish Bias
Disbarred lawyer loses appeal
•The Volokh Conspiracy / 16h
An excerpt from today's Appellate Court of Connecticut decision in Ambrose v. Ambrose , written by Judge Alexandra Davis DiPentima and joined by Chief Judge William Bright and Judge Bethany Alvord: The primary issue in this writ of error challenging the disbarment of an attorney is whether her due process rights were violated by the procedure used by the first defendant in error, Hon. Thomas G. M
[Eugene Volokh] Expelled White Student's Suit Against Howard Law School Largely Dismissed, but Can Go Forward on Some Claims
The Volokh Conspiracy / 16h
A short excerpt from today's long decision by Judge Trevor McFadden (D.D.C.) in Newman v. Howard Univ. School of Law (for more, read the whole thing): Howard University School of Law expelled Michael Newman. It claims that it did so because he repeatedly sent disruptive emails to his classmates against school policy. Newman tells a different story. He claims that his expulsion was the culmination
[Keith E. Whittington] Former Presidents Do Not Enjoy Blanket Criminal Immunity
The Volokh Conspiracy / 16h
[So says the DC Circuit Court] The D.C. Circuit Court's opinion in US v. Donald Trump on whether the former president enjoys a blanket immunity from criminal prosecution for his actions while president is now out. It can be found here . It is a comprehensive opinion, and I think a correct one. Given my own scholarly interests, I was particularly anxious about how the court might handle the claim
[Eugene Volokh] The Doctrine of Hotchpot
The Volokh Conspiracy / 16h
What is this, under American law? (It has sometimes been referred to as "hotch-potch," but is not to be confused with "hodgepodge," the Wisconsin Court of Appeals tells us.) The post The Doctrine of Hotchpot appeared first on Reason.com .
[Stewart Baker] Serious threats, unserious responses
The Volokh Conspiracy / 16h
[Episode 490 of the Cyberlaw Podcast] It was a week of serious cybersecurity incidents and unimpressive responses. As Melanie Teplinsky reminds us, the U.S. government has been agitated for months about China's apparent strategic decision to hold U.S. infrastructure hostage to cyberattack in a crisis. Now the government has struck back at Volt Typhoon, the Chinese threat actor pursuing that strat
:@WilliamBaude: The Use and Misuse of Section Three's "Legislative History": Part II
The Volokh Conspiracy / 16h
[Note: This is the sixth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first five essays can be found here , here , here , here , and here .] Earlier today we began discussing the use and misuse of constitutional legislative history in interpreting Section Three of the Fourteenth Amendment. We first set out some important ge
[Jonathan H. Adler] DOJ Files Petition for Writ of Mandamus to End Juliana Climate Litigation
The Volokh Conspiracy / 16h
[The Justice Department is wasting no time seeking to put this zombie litigation out of its misery, and the plaintiffs are not happy about it.] The Department of Justice is wasting no time in seeking to put a swift end to the Juliana "Kids Climate Case." Last month, DOJ filed a motion for a stay in the district court so that the federal government could file a writ of mandamus to dismiss the case
National Security at the United Nations This Week (Feb. 5-Feb. 9)
Just Security / 17h
( Editors’ Note: This is the latest in Just Security’s weekly series keeping readers up to date on developments at the United Nations at the intersection of national security, human rights, and the rule of law. ) Security Council Briefing on Kosovo and Serbia Relations On Thursday, the United Nations Security Council heard a briefing from the Special Representative for Kosovo , Caroline Zaideh, o
NYU Prof Moves to Intervene in NYU Antisemitism Case – Fears Could Be Wrongly Labeled “Antisemitic”
Le·gal In·sur·rec·tion / 18h
NYU Professor Andrew Ross fears that the antisemitism lawsuit against NYU could infringe on his First Amendment free speech rights: "Dr. Ross is not an anti-Semite but has with deep conviction spoken and written his criticism of the actions of the nation-state Israel." The post first appeared on Le·gal In·sur·rec·tion .
Ireland Basketball Team Not Shaking Hands With Israel Team Does Nothing to Quell Antisemitism Accusations
Boycott of Israel game defended
•Le·gal In·sur·rec·tion / 20h
It's a shame that Team Ireland couldn't accept the truth about their country. The post first appeared on Le·gal In·sur·rec·tion .
U. of Maine Kicks Off Black History Month by Raising a Black Lives Matter Flag
Le·gal In·sur·rec·tion / 21h
"The ceremony was hosted by the university’s Office of Diversity and Inclusion" The post first appeared on Le·gal In·sur·rec·tion .
MA Governor Maura Healey Nominates Her Former Romantic Partner to State’s Highest Court
Le·gal In·sur·rec·tion / 22h
“Justice Wolohojian has served on the Appeals Court with distinction and her work is widely respected by members of the bench and bar. She has an exceptional understanding of the law and a strong commitment to the administration of justice” The post first appeared on Le·gal In·sur·rec·tion .
Police Called When Pro-Palestinian Students at Cornell ‘Occupy’ the Library
Le·gal In·sur·rec·tion / 22h
"Cornell says pro-Palestinian student protestors violated university policy" The post first appeared on Le·gal In·sur·rec·tion .
Morning Joe Crew Lose Their Minds Over Special Counsel Describing Biden as ‘Elderly Man With a Poor Memory’
Le·gal In·sur·rec·tion / 1d
"I will say that without — there’s no doubt in my mind that this special prosecutor could have written the same report without using these words: 'Elderly man with a poor memory.'" The post first appeared on Le·gal In·sur·rec·tion .
Florida Supreme Court Strikes Down State Bar’s DEI Programs
Le·gal In·sur·rec·tion / 1d
"[T]he Florida Bar will transition its Diversity and Inclusion Committee to a new Membership Outreach Committee" The post first appeared on Le·gal In·sur·rec·tion .
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[Eugene Volokh] ABA Adopts New Academic Freedom / Freedom of Expression Requirement for Law School Accreditation
ABA requires law schools' academic freedom
•The Volokh Conspiracy by Eugene Volokh / Feb 9, 2024 at 5:01 PM//keep unread//hide
This apparently just happened; here's the full American Bar Association standard (and see this ABA Journal article):
Standard 208: Academic Freedom and Freedom of Expression
[a] A law school shall adopt, publish, and adhere to written policies that protect academic freedom. A law school's academic freedom policies shall:
[1] Apply to all full and part-time faculty, as well as to all others teaching in law school courses;
[2] Apply to conducting research, publishing scholarship, engaging in law school governance, participating in law related public service activities, curating library collections and providing information services, and exercising teaching responsibilities, including those related to client representation in clinical programs; and
[3] Afford due process, such as notice, hearing, and appeal rights, to assess any claim of a violation of the academic freedom policies.
A law school shall adopt, publish, and adhere to written policies that encourage and support the free expression of ideas. A law school's free expression policies must:
[1] Protect the rights of faculty, students, and staff to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations, or protests; and
[2] Proscribe disruptive conduct that hinders free expression by preventing or substantially interfering with the carrying out of law school functions or approved activities, such as classes, meetings, library services, interviews, ceremonies, and public events;
[c] Consistent with this Standard, a law school may:
[1] Restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, or that unjustifiably invades substantial privacy or confidentiality interests.
[2] Reasonably regulate the time, place, and manner of expression.
[3] Adopt policies on academic freedom and freedom of expression that reflect the law school's mission, including a religious mission, to the extent such policies are protected by the First Amendment of the United States Constitution and are clearly disclosed in writing to all faculty, students, and staff prior to their affiliation with the law school.
Interpretation 208-1[:] Standard 208 applies to both public and private law schools.
Interpretation 208-2[:] A law school may, when appropriate, differentiate among students, faculty, and staff in its policies on freedom of expression.
Interpretation 208-3[:] Standard 208(a) does not preclude a law school from identifying the courses that will be taught, requiring courses to cover particular content, or requiring faculty, students, or staff to clarify in appropriate circumstances that their views are not statements by or on behalf of the law school.
Interpretation 208-4[:] This Standard does not prevent a law school from applying disciplinary action for conduct identified in Standard 208(b)(2).
Interpretation 208-5[:] Subsection (c) recognizes that law schools may restrict speech consistent with the First Amendment of the United States Constitution.
Interpretation 208-6[:] Effective legal education and the development of the law require the free, robust, and uninhibited sharing of ideas reflecting a wide range of viewpoints. Becoming an effective advocate or counselor requires learning how to conduct candid and civil discourse in respectful disagreement with others while advancing reasoned and evidence-based arguments. Concerns about civility and mutual respect, however, do not justify barring discussion of ideas because they are controversial or even offensive or disagreeable to some.
[From the accompanying Report:] … In the background, but not influencing the creation of Standard 208, were the widely publicized disruption of a speech at Stanford Law School in March 2023 and a letter that month to the Council from the U.S. House Committee on Education and the Workforce asking the Council to investigate the Stanford Law School's compliance with Standard 405(b)….
The post ABA Adopts New Academic Freedom / Freedom of Expression Requirement for Law School Accreditation appeared first on Reason.com.
https://reason.com/volokh/2024/02/06/aba-adopts-new-academic-freedom-freedom-of-expression-requirement-for-law-school-accreditation/
-
I believe the issue is understated here--IIRC both the Michael Mann hockey stick trial against Mark Steyne and some of Trump's travails involved DC federal courts being shopped--as outcomes can be greatly influenced by venues, with DC juries being notoriously woke. This change, in short, can't happen fast enough IMO:
[Samuel Bray] A Welcome Judicial Reform: Towards Random Case Assignment
The Volokh Conspiracy by Samuel Bray / Mar 13, 2024 at 10:16 AM//keep unread//hide
I was delighted to see the Judicial Conference of the United States is acting to promote random case assignment in certain declaratory judgment and injunction cases. You can read the press release here.
It will be important to see the details, but as outlined, this policy change will ameliorate the consequences of forum-shopping in the federal courts, particularly when that forum-shopping allows plaintiffs to essentially select the judge who will hear the case. Allowing a plaintiff to select her own judge is inimical to the rule of law and brings disrepute on the judiciary.
To be clear, it is not the fault of the judge, who is open for business to anyone who files a complaint that meets the various jurisdictional and venue requirements. Similarly, it is hard to blame a plaintiff for trying to find the most advantageous place to sue. The duty of zealous advocacy may even require it. And even though there is an uneven distribution of single-judge districts, I think the primary problem is not a partisan one–Republican state attorneys general seek national injunctions in friendly district courts, and Democratic state attorneys general seek national injunctions in friendly district courts, and I don't have to tell you where those are (the pattern holds in national injunction cases from the second half of the second Obama term to the present). Even so, the problem is greater in degree if a plaintiff is able to select a single judge.
As is often the case with structural problems, each actor can act rationally, by her own lights, but the collective action can go badly wrong. That's true here. The status quo is deeply messed up and I don't know why anyone would want to defend it. Good judicial practice should be preferred to partisan advantage every single time. It is a welcome development for the Judicial Conference to address this.
The argument is sometimes made that we should wait and let Congress fix the problem. But everyone is waiting for someone else to do something about it. It's good for the federal judiciary to act to get its own house in order.
Two final observations:
There are a number of structural forces that have gotten us to this point, where the stakes are so high and the forum-shopping options are so high-powered. One is the expansion of state standing after Massachusetts v. EPA (though that seems to be ebbing after the Court's last term, as Will Baude and I explain here). The shift to abstract plaintiffs–coalitions of states–matters because there will be so many places to sue. Another is changes in preliminary injunction practice that make forum-shopping easier (more on that in a paper I'm writing). Still another, of course, is the rapid rise of the national injunction in the last ten years, a development that makes the stakes much higher and the forum selection more salient.
As outlined in the statement from the Judicial Conference, the policy will apply to "civil actions that seek to bar or mandate state or federal actions, 'whether by declaratory judgment and/or any form of injunctive relief.'" To me that seems exactly right. The declaratory judgment and the injunction are the two relevant remedies. It is noteworthy that there is no mention of vacatur. That is correct: vacatur is not a remedy (this is true under the text and structure of the APA, and it is true in the law of remedies for reasons I could elaborate at great length). If I am reading the Judicial Conference's statement correctly, the reference to "any form of injunctive relief" is meant to be broad enough that if a court insists on acting like vacatur is a remedy, and acting like it is an injunction, then the court's action is covered, but all without committing the doctrinal error of actually calling vacatur a remedy.
Bottom line: this is a welcome and overdue development. Three cheers for the Judicial Conference.
The post A Welcome Judicial Reform: Towards Random Case Assignment appeared first on Reason.com.
https://reason.com/volokh/2024/03/13/a-welcome-judicial-reform-towards-random-case-assignment/
ETA: More background and discussion: https://reason.com/volokh/2024/03/13/the-judicial-council-legislates-from-the-shadow-docket/