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Monday, May 31, 2004

Italy on the Cutting Edge of Technological Repression 

The AP reports here that Italy has passed tough new IP legislation to combat illegal internet file sharing:
The law calls for up to three years in prison for using the Internet illegally for commercial purposes. Such offenses include selling content for which the vendor does not hold the intellectual rights. Fines for infringements run as high as $300,350, though smaller fines of up to $1,250 would be imposed for simply downloading copyright works for personal use.
I don't know what kind of grudge Italy has against file sharers or technology, but this is pretty harsh. We need one country that will experiment with free use of copyrighted works, but it is doubtful that any major player will do so, nor will any European countries.

Abortion News 

This is a little disturbing.

Sunday, May 30, 2004

Is Intent All? 

I gotta disagree with PG over at De Novo on this one. She posts here on the actions of two boys: the first convinced the other to kill him, though the other had no knowledge of the suicide and thought he was joining the British Secret Service, using an internet chat room. PG comments on the would-be assassin's light sentence: "He thought that he was committing murder, not assisted suicide, when he began to stab John, and his punishment ought to fit more closely with his intent." Assuming my criminal law class knowledge overlaps with current day English criminal law, legal impossibility can be a defense to a crime; intent is not the only thing that matters, but whether the ultimate crime could have been committed. Some other examples of weird things that maybe should be, but aren't criminal, are:
By the same logic, trying to kill someone that has consented to that killing (and actually put into motion the whole plot) seems closer to an assisted suicide than a murder under a legal impossibility theory: It would be anomolous to call the crime a murder (as to the killer) and a suicide (as to the potential victim).

At the same time, impossibility is a fuzzy doctrine, and legal impossibility could just as easily be characterized as factual impossibility, which does not negate the crime. Still, this case isn't so simple, and I think the sentencing for attempted assisted suicide is justified, even though reasonable people may disagree. The point is that it is not a simple case.

Friday, May 28, 2004

United States v. The First Amendment 

We live in interesting times. The AP reports here that an Idaho man, Sami Omar Al-Hussayen, has been on trial for "provid[ing] material support to terrorist groups--not with cash or arms, but with computer expertise." More specifically, he "set up and ran Web sites that prosecutors say were used to recruit terrorists, raise money and disseminate inflammatory rhetoric." It is hard to know the precise details of his conviction, but it is plain, as the article points out, that this will be a major test of the reach of the PATRIOT Act when dealing with incitement to lawless acts.

Current First Amendment doctrine follows the test from Brandenburg v. Ohio, namely that speech may be criminalized only if "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (emphasis added). For my purposes, however, it is more interesting to consider two cases that have not been specifically overruled (as Professor Volokh's casebook points out), and dealt with a very different time in a very different political climate: Dennis v. United States, and Yates v. United States.

Dennis upheld the conviction of a communist who advocated the overthrow of the U.S. government, and Yates clarified Dennis in certain regards. Justice Frankfurter's concurrence in Dennis contains very apt words: "The right of a government to maintain its existence - self-preservation - is the most pervasive aspect of sovereignty. 'Security against foreign danger,' wrote Madison, 'is one of the primitive objects of civil society.'" It is easy to claim the primacy of the freedom of speech when faced with times where words are indeed harmless, but when faced with a situation, as with terrorism, where words can generate real harms (raising of funds, propaganda for recruiting, etc.), should the government not draw a line a little closer to the abstract in order to prevent grave harms?

With identifiable terrorist groups at large, and membership hard to pin down, a Dennis-like situation is indeed brewing. Consider these words from Yates: "[I]ndoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to "action for the accomplishment" of forcible overthrow, to violence as "a rule-or principle of action," and employing "language of incitement," is not constitutionally protected when the group is of sufficient size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur." (Quoting Dennis). This reasoning could indeed by applied to the present situation. The question, then, is whether we should.

I don't know that these times (or the facts of the AP story above, which are sparse) would justify a relaxing of the Brandenburg test, although I think we would be foolish not to consider the question thoughtfully when there are real dangers here. Just as governmental power may be abused, so may individual liberty.

But just so I don't write a post without taking a stand, I'm for upholding Brandenburg, with the resulting unconstitutionality of any act that allows punishment for more abstract incitement. This is probably due more to faith in law enforcement's other means than fear of the government's power; it is always easier to never grant a power than to turn it off once activated, and we should not do so unless things really become dire.

Uh Oh 

Volokh posts yesterday:
I just handed in the grades for my Free Speech Law exam, and called and congratulated the A+ and A students, always my favorite part of the grading weeks.
Well, there's no message on my machine. Oh well. Not that I'm really surprised :)

Thursday, May 27, 2004

Not Much 

It feels like there is a lull in the legal world now that law school is over for another year. I don't know if there is a cause ane effect here, as legal news is generated by more than just academics. Nevertheless, blogging has been slow the last few weeks. Sigh.

I start work on Tuesday, and hopefully I will get to do something in court this summer. More on this as it develops.

Tuesday, May 25, 2004

The Day After Yesterday 

In movie news, I saw The Matrix: Revolutions last night. I had avoided seeing it in theaters because people said it was aweful. However, I was pleasantly surprised by how much I enjoyed it. The beginning is stupid (which is what may turn people off), but after that it becomes an enjoyable action movie with great special effects. The fight with Agent Smith was excellent. I think this film compares well Return of the Jedi: both were the lesser films of their respective trilogies, but you know the characters, and you have fun watching them go out with a bang.

In other movies news, this guy may have liked Independence Day, but he hated The Day After Tomorrow. I hated Independence Day, so TDAT is not getting one red cent from me. The money quote for those who wonder about this films political leanings: "[The] president is a bumbling idiot, a puppet manipulated by his evil, self-motivated vice president."

No Car is Safe 

The Supreme Court yesterday decided Thornton v. United States, declaring a bright-line rule allowing police to search cars incident to arrest, regardless of whether contact or the arrest is initiated inside or outside the vehicle.

I think Justice O'Connor is right on the money when she says " the approach Justice Scalia proposes appears
to be built on firmer ground." In a rare Scalia-Ginsburg concurrence, he criticized the extention of the "search incident to arrest" doctrine, based on the rationales of officer safety and preventing the destruction of evidence, to encompass the interiors of cars in all circumstances where an occupant is arrested. Rather, searches in this situation should only be justified when the nature of the crime makes it reasonable to believe that there is other evidence inside the car.

But for now, hide your incriminating evidence someplace else.

More on Berkeley 

Juan Non-Volokh has a more accurate account of what the Berkeley law professor's allegedly abuse-causing memo actually was about here.

Monday, May 24, 2004

Another Halftime Suit 

Some dude is suing Viacom for falsely advertising the Superbowl halftime show. AP story here. He says the "pre-game ads led him to believe he would be seeing marching bands, balloons, and a patriotic celebration. Instead, he says he was exposed to explicit song lyrics, Janet Jackson's bare breast, and what he calls Kid Rock's desecration of the American flag by wearing it as a poncho."

I'd like to sue Viacom as well because the show was falsely advertised as entertainment.

Saturday, May 22, 2004

Didn't Learn Much 

TalkLeft reports here that graduating law students at Berkeley are protesting a professor's writing a memo arguing that the ordinary laws of war do not apply to al-Qaeda and Taliban prisoners. This memo, they say, "helped the Bush administration develop the legal framework that led to the abuse of Iraqi prisoners." The protesters are demanding that the professor either change his mind, or resign.

From what I gather, the professor could easily be right: the Geneva convention (the widely known "laws of war") does not apply to non-uniformed combatents that do not themselves follow the rules of war. On top of this, no civilian law school teaches military law simply because civilian lawyers rarely ever practice military law, so the students are not making any legal analysis here. The students even admit they are not making legal judgments: "I respect freedom of thought, but I think he should abide by some basic moral standard." Or, in other words, "if your arguably correct interpretation of the law conflicts with what I wish the law (of which I have no knowledge) said, you should shut up."

The Dean of the law school gave pseudo-support for academic freedom by acknowledging that faculty members may take an "extreme position." If making a reasonable interpretation of the law is an "extreme position," then I have little hope for Boalt Hall as an academic institution.

My only first-hand experience with that law school is that I was in the library once. It kinda sucked.

Interesting Solution . . . 

. . . but is it constitutional? The AP reports here that a Louisianna jury has found that tabacco companies must pay half a billion dollars for stop-smoking programs because of deceptive practices used before the 1990s. The progam will include "stop-smoking patches and gum, telephone hot lines, intensive counseling, advertising for the program, grants to churches and community groups to publicize the program, and training programs for quit-smoking counselors." The patches and gum sound fine, but much of this (and the overall program) seems like compelled speech, which receives scrutiny under the First Amendment.

Cases like PG & E Co. v. Pub. Utilities Comm'n forbid the government from compelling a company to distribute speech they do not agree with. The same rationale may apply here. The usual award for tort suits is damages, but here the court is mandating that the companies pay money to be used to promote a specific message; individual plaintiffs will not receive any money.

It is a unique solution, and more details might reveal that this judgment is part of a voluntary agreement to create a program rather than pay out individual damage awards. But I don't know that even a court judgment can compell a company to pay for speech it doesn't agree with, or at least more speech on a subject than the company would otherwise make voluntarily.

Friday, May 21, 2004

Time Well Spent 

11:13 pm. Friday. Summer vacation. In the Law Review office. Working.

Interesting Law 

This post by Nick over at De Novo reminded me of an interesting case, Drayden v. White. This one was up on habeas review, for (among other things) prosecutorial misconduct. The petitioner alleged that the prosecutor's closing argument was improper. The prosecutor delivered his closing from the witness stand in the voice of the victim, and was as follows:
My name was Jerry Quinton, and I was 48 years old the night that I was strangled to death. I was 5'8'', and I weighed 184 pounds. I lived at 1745 Pacific, Apartment 403. You've seen the diagram up here. It's People's 7. I worked for VISA Corporation. I was an employee for them, and I had taken some time off and come back. And when I came back, as part of my job as an employee for VISA, I was issued a VISA credit card.

I was gay. One of the things that I liked in a sexual experience was to have a strong, straight-looking black man to perform sex upon. And on this particular evening I went out and found one. I found John Thomas Drayden. I found him coming out of Tosca's, and we started a conversation.

I asked him, in the course of the conversation, to come home with me, and he said "yes." We walked back to my house. It's about a mile from Tosca's. And we had a conversation on the way back about what it was we would do when we got there.

When we got home I walked through the door and I started to hang my coat up, because I was there expecting to have sex. And the next thing I knew I was hit from behind and driven to the floor. I was beaten and I was rendered unconscious. And thank God for that. I didn't know what happened to me next, when Mr. Drayden put that cord around my neck and strangled the life out of me.

I listened to his testimony about how we walked into the living room and I turned on music for him and offered him something to drink and how I made phone calls to BART for him. And that's a lie.

He said he gave me his BART card so I could call the number. That didn't happen. There wasn't a phone number on a BART card. Even had he given it to me, I didn't make phone calls for him. And you know that, because if I had made phone calls for him that telephone would have still been in the living room. And you, members of the jury, could have seen the cord.

If I had turned on the music for him, that tape would have eventually stopped, but the power machine would have still been on when Inspector Bergstrom came and looked in my apartment two days later. But it was off, because it was never on.

The reason John Drayden was able to use a hanger to strangle me to death is because that hanger was in my hand as I took it out of the closet by the doorway to hang up my coat. And when he hit me, it fell to the ground. If I had been sitting in my living room with somebody that I had picked up to have sex with, I wouldn't sit in that living room for half an hour fully dressed.

Think about it yourselves. You come in out of a winter night. You are with someone, you are going to sit down on a couch and talk to them. Are you going to leave your coat on and a sweater on? I wouldn't. It was warm in there.

And as far as chasing John Drayden to the door, I would rather - I would almost rather be dead than do something like that.

I was a gentle man, not aggressive. I was passive. And if someone said to me when I propositioned them that they didn't want it, that they weren't into that, I would have been embarrassed and mortified and all I would have wanted was to get them out of that apartment as fast as I could.

Ladies and gentleman I was not a fighter. I was a gentle man. And I didn't deserve to have happen to me what he did to me.

Ladies and gentlemen, what he did to me was he murdered me. It was not self-defense. He wasn't angry. I don't know why, having listened to the testimony, he came to my apartment with me. But I do know that the reason that he told you he came there was a lie. And the evidence that was found in the apartment two days later by the police department brands it as a lie.
The Ninth Circuit determined that this closing was improper because "the Prosecutor inappropriately obscured the fact that his role is to vindicate the public's interest in punishing crime, not to exact revenge on behalf of an individual victim." However, it upheld the denial of habeas relief because it did not amount to a due process violation, the standard used on habeas review for this type of violation. I found this to be an interesting prosecutorial tactic, and interesting lawyering should be commended. However, I can see why this should not be allowed.

Thursday, May 20, 2004

Michael Moore 

You know, I liked Roger and Me, the documentary about the closing of the General Motors plant in Flint, Michigan. I was heart-felt, it was important, and it was funny. I also rather enjoyed Michael Moore's book Downsize This! because it was funny and made good points about wealth in America. Probably more so in Downsize This! than his film, Moore's chief flaw in my mind was his tendency to portray his side as the absolute truth on a controversial issue, which was fine when he was a relatively small fish, and just an entertainer that happened to be thoughtful. But then somewhere along the line he figured he was important, then everything went to hell.

Bowling for Columbine wasn't very funny. In some portions, it apparently also wasn't very accurate. This site, although poorly designed, seems to highlight some rather gross mischaracterizations used by Moore in Bowling for Columbine, at least about the NRA meeting in Denver which made Charleton Heston look like a monster. If Moore is going to make blatent propaganda, then he could at least entertain me with it. Instead, he has decided to take himself as the messenger of his own brand of political truth, with which everyone must agree (or at least pay for). In other words, he has become very annoying, and less valuable to America in a very short time.

Brian over at RFTR posts here about the upcoming film Michael Moore Hates America, which for a small portion uses Moore-like tactics to make Moore himself look dumb. This will be interesting.

Wednesday, May 19, 2004

Civ Pro News 

The Supreme Court announced its opinion a few days ago in Grupo Dataflux v. Atlas Global Group. For civil procedure fans, the question presented was subject matter jurisdiction of federal courts sitting in diversity: an alien partnership sued an alien company, but the partnership became a Texas partnership after the complaint was filed but before trial. After the trial, but before entry of a judgment, the defendant moved to dismiss for lack of jurisdiction, which was granted since the parties were not diverse at the time of filing. The Fifth Circuit reversed, citing the holding of Caterpillar Inc. v. Lewis, allowing the suit where diversity defects were cured before trial so as to avoid the waste of judicial resources.

The Supreme Court reversed, upholding the dismissal. In a 5-4 split, the Court held that a diversity defect could not be cured by changing the status of one of the parties.

You know it's a slow day when I'm writing on civil procedure.

Tuesday, May 18, 2004

This is an Issue? 

I thought John Kerry's stumping about gas prices was just a gimmick when he was here in So Cal because people here are morons for which filling SUVs at a bargain price is an issue to be tackled by the President of the United States. However, apparently he's still at it. Apparently when prices climb for reasons other than a national gas tax, this is the result of bad policy.

These solutions are proposed: "suspending filling the Strategic Petroleum Reserve, working more effectively with oil-producing nations and enacting simpler and cleaner national fuel strategies." 1) Suspending the filling of the reserve sounds like a bad idea; I agree with the administration that we need to have this at full-capacity for emergencies, which could well happen. 2) What is "working more effectively with oil-producing nations"? I'd like to see Kerry's plan to topple OPEC with kindness before I sign on. 3) Cleaner national fuel strategies are a great idea, but these are incredibly long-term, and not free. Even if Kerry is elected, the benefits of enacting such measure would not be seen until well into the Schwarzenegger administration, and won't consumers pay for these new technological measures even if they aren't paying for gas?

The whole gas-angle seems based on a short-term benefit to boost support, and this seems neither necessary nor wise. I'm no economist, but the "whatever Bush is doing is wrong" platform doesn't look very sound here.

Bono 

The AP reports here that "Bono Says FCC Has Taught Him [a] Lesson." Apparently that lesson was to not swear on television, but the real story is about him receiving an honorary degree from Penn. I've always found Bono to be an unobtrusive proponent of a real cause, and he goes about it in an effective way. After the realization that benefit concerts for Africa are only able to pay off a week's interest on the continent's debt, he speaks for a much larger scale solution. He uses his position as the frontman for the greatest band of all time well. Good stuff.

But where's The Edge's degree?

Monday, May 17, 2004

Sovereign Immunity Madness 

Today the Supreme Court issued its ruling in Tennessee v. Lane, the case where a man sued a state under the Americans with Disabilities Act for failing to have an elevator in a courthouse. How Appealing has the links here.

States enjoy the constitutional protection of sovereign immunity, interpreted from the Eleventh Amendment, which forbids their being sued without their consent. However, under some circumstances Congress may abrogate that immunity: When it legislates under its Fourteenth Amendment section 5 power (to remedy unconstitutional discrimination), it may provide a cause of action against a state directly. That's all well and good, but in 2001 the Court ruled in Board of Trustees of the University of Alabama v. Garrett that Title I of the ADA was not enacted persuant to Congress's section 5 power, and thus could not abrogate sovereign immunity. The Court in Lane today ruled that Title II of the ADA, the same act, was enacted persuant to Congress's section 5 power. You'll have to read the case to find the distinguishing characteristics, because I don't have the strength right now.

Both Garrett and Lane were 5-4 splits. The swing vote? O'Connor. She joined the majority in Lane but offered no concurring opinion to illuminate her reasoning. Thus, the struggle to sue states marches on, seemingly without direction.

Friday, May 14, 2004

The Feds Have Spoken 

And did so in favor of the Massachusetts Supreme Judicial Court. The challenge to the SJC ruling in Goodridge v. Department of Public Health in federal court for violating the Guarantee Clause of the federal Constitution was rejected by the district court. The opinion can be accessed here. In short, the court ruled that the SJC had the authority (surprise, surprise) to interpret the Massachusetts Constitution.

Of note for this blog, it gave short shrift to all jurisdiciton and justiciability issues. This is just as well, because the quicker this challenge goes away, the better. However, I found the finding of standing particularly unpersuasive; the court said that the interest in having a republican form of government alone gave the plaintiffs standing. If the interest in having a congressperson conform to the Incompatability Clause, see Schlesinger v. Reservists Comm. to Stop the War, does not generate general citizen standing, then why does this?

Wednesday, May 12, 2004

Slow Blogging Wednesday 

I don't have much to say about the law or anything else today, so check out the Official String Theory Web Site.

Tuesday, May 11, 2004

Building Something? 

Then make sure you read Construction Law Blog regularly! Of note, bad news for dog lovers.

Haloscan Trackback . . . 

. . . blows goats. Sometimes I take the time to ping someone's post, but most of the time it is a pain in the rump. It also doesn't look like Movable Type pings the Haloscan trackback. I see other Haloscan uses have ditched it on their sites, although I think I'll keep mine for a while longer because it makes my site look more bloggy.

More on the Guarantee Clause 

Some follow up on my posts below on the federal challenge to the Mass. same-sex marriage ruling:

The Guarantee Clause of Article IV of the Constitution seems to be a rare creature indeed, and is even more rare in the federal courts. The Supreme Court in New York v. United States stated: "[T]he Guarantee Clause has been an infrequent basis for litigation throughout our history. In most of the cases in which the Court has been asked to apply the Clause, the Court has found the claims presented to be nonjusticiable under the 'political question' doctrine." The reason for this is surprising (at least to me). As explained by Chief Justice Taney in Luther v. Borden (1849), the Guarantee Clause allows Congress to decide whether a state's government is republican or not. If a state's government is not, it is no longer a sovereign part of the United States. This provision looks like it allows the federal government to protect the constitutionally legitimate (republican) government against an invasion or internal rebellion.

The inference I draw from this is that a "republican form of government" is an all-or-nothing proposition. In the lawsuit filed below, if the Massachusetts SJC's holding mandating same-sex marriage is striken down, it is because Massachusetts is no longer a legimate state in the eyes of the United States. Wow. I'm hardly a Guarantee Clause scholar, but this would explain why the clause is almost never used, as an alternate interpretation woudl allow a federal court (or Congress, or the President even) to tinker with a state's structure. It seems reasonable that such interference would only be allowed in the most extreme cases of rebellion or a state declaring someone king.

The ruling of the SJC hardly amounts to this level of illegitimacy.

Monday, May 10, 2004

More on Same-Sex Marriage Challenge 

Via How Appealing, more on the subject of the federal challenge to the Massachusetts ruling mandating same-sex marriage here and here. The challenge is based on the "Guarantee Clause" of Article IV of the federal Constitution, which "guarantees that every State in the Union will have a Republican Form of Government." I suspected as much, but couldn't be sure from the AP story, but in any event I doubt that a republican form of government is the same as the separation of powers.

One article points out that, interestingly, [t]he Massachusetts Constitution clearly gives the authority to hear all marriage cases to the Governor and the Legislature, not the Courts." Pt. 2, Ch. III, Art. V does indeed read something like that: "All causes of marriage, divorce, and alimony, and all appeals from the judges of probate shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision." However, it sounds like it is limited to actual marriage issues, rather than judicial review of anything dealing with marriage. Other povisions also seem to rebut the restrictive reading, like Pt. 2, Ch. I, Sec. I, Art. IV:
[F]ull power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth . . . .
It seems that the Massachusetts Constitution does not foreclose constitutional judicial review of statutes just because they happen to deal with marriage. Under the contrary reading, a Massachusetts court interpreting its own constitution would be powerless to strike down miscegenation laws (though a federal court could still do so).

Even if the Mass. Constitution did forbid judicial review in this way, I still don't think it is a federal issue. If a Massachusetts court completely ignores its own constitution, but does not violate any federal right in doing so, then it is completely a matter for Massachusetts. Allowing federal court review would essentially be interpreting a state's constitution to make sure the state "got it right," which principles of federalism do not allow. Even if a federal court thought there might be a federal issue, it seems like the challengers still have a losing argument. There is still a republican form of government because the legislature still exists, and the amendment process would allow popular nullification of the SJC's ruling. It would be odd indeed if the federal Constitution forbids to the states the same judicial review exercised by the Supreme Court of the United States.

I'd be surprised if the federal court reaches the merits of this case, and floored if it actually enjoins enforcement of the SJC ruling in Massachusetts.

No Federal Issue 

The AP reports here that a group in Massachusetts has filed a federal challenge to the state court's ruling mandating same-sex marriages. The story is sparse on detail, containing only this quote from the president of Liberty Counsel: "[T]he federal courts are obligated to step in to ensure that Massachusetts is following the basic principle of separation of powers that is vital to our very system of law and government." Well, no, they are not. In fact, they are probably bound to stay out of this issue.

The separation of powers is a fundamental principle of the federal Constitution, and of many state constitutions as well. However, it is not a textual prohibition like the Bill of Rights or the civil war amendments; the federal constitution says nothing about states' keeping their powers separate. For example, the federal judiciary is bound not to issue "advisory opinions" to Congress on the constitutionality of proposed federal legislation, a clause allowing such judicial advice being rejected when the Constitution was drafted. However, nothing prevents state courts from issuing advisory opinions to the state legislatures, and in fact I believe Massachusetts allows such opinions. Thus, states are not bound by federal separation of powers issues.

The Supreme Judicial Court's opinion in Goodridge was not an advisory opinion; it was judicial review of a statute, and an interpretation of the state's constitution. Nonetheless, the federal Constitution does not bar this on separation of powers grounds for the same reasons explained above. Moreover, judicial review has been a part of state and federal jurisprudence since the founding. And even more than this, principles of federalism (also constitutional) prevent unnecessary federal court interference in purely state court matters. If there is no federal issue on the substance of the SJC's ruling, and no issue on the procedural enactment grounds, then there can be no federal issue to give a federal court jurisdiction.

On another issue, it is questionable whether these groups have standing to challence the SJC ruling. None of them are particularly aggreived by the ruling since they are not denied anything they have a right to, other than having government operate within the bounds of law. The Supreme Court has ruled that this is insufficient. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Allen v. Wright, 468 U.S. 737 (1984).

I would like more information, but for now it looks like this challenge doesn't have a leg to stand on.

Sunday, May 09, 2004

Brady Anyone? 

TChris over at TalkLeft really blows it in this post. In an otherwise accurate portrayal of a corrupt prosecutor he ends with this: "One reform is obvious: prosecutors shouldn't be allowed to keep any scrap of information secret. Everything should be turned over to the defense, in every case." That sounds like a great idea, especially since the Supreme Court decided something very similar forty years ago in Brady v. Maryland, 373 U.S. 83 (1963): the prosecution must turn over to the defense all exculpatory evidence in its possession. Later cases expanding upon Brady, ruling that the prosecution is in "possession" of anything law enforcement is in possession of, preventing wilfull ignorance on the part of the prosecution of evidence in possession of police. This discovery obligation is mandatory; no request is necessary. I think this is materially the same as what TChris means, because even though this is less than "everything," it covers everything material to innocence.

The problem isn't the law, it's certain individuals not following the law. Entirely nothing is done by saying prosecutors cannot keep things secret, because they already cannot. Saying that people should not violate the law is a "duh" argument. The trickier thing would be to propose a scheme that prevents people from behaving unethically, or makes it harder for the state to hide evidence illegally. I admit this is hard to do since law enforcement gathers all the evidence in the first place, and so presumably could hide it before anyone else would know of its existence. This is a problem, but not one of governing law, and not one addressed by TChris.

Perhaps I am a bit too caustic here, but that ending line was about as effective as saying that outlawing terrorism is the key to preventing future 9-11s. Plus, some of the commenters at TalkLeft were badmouthing prosecutors. Grr.

Making the World Safe for Leftist Slant 

I didn't know where to begin when I read this piece about L.A. Times editor John Carroll speaking about the rise of "pseudo-jounalists." I thought it may be a piece on bloggers, but no, it's about Fox News. Yes, the L.A. Times, the publication that systematically replaces "pro-life" with the words "anti-abortion" (resulting in this amusing tidbit), criticized Fox News's bias. Oh, That Liberal Media! does a pretty good job of tearing Carroll to pieces.

Saturday, May 08, 2004

Three Generations of Imbiciles . . . 

The AP reports here that a New York judge has rule "[a] couple has been ordered not to conceive any more children until the ones they already have are no longer in foster care." The children the couple already have are extremely messed up. Thanks to Brian at RFTR for the pointer.

This is a troubling case on both sides of the issue. The right to privacy in family planning was established long ago (although cryptically) in Griswold v. Connecticut. Forbidding a couple from conceiving children rather than forbidding contraception brings up the ghosts of the infamous Buck v. Bell, where the Supreme Court, per Justice Holmes, allowed the forced sterilization of a woman based on her being the third "feeble-minded" woman in her family. After the extent of Nazi Germany's horrible eugenics program became known, the unrestricted right to have children has seemed firmly entrenched in American life.

But, on the other hand, this couple is unquestionably behaving irresponsibly, costing the government (meaning all other citizens) valuable resources to care for the couple's drug addicted and neglected kids. To force the state to stay silent in the face of this is cruel to the children who may be born before these parents have their act together. I don't blame this judge for trying to do the right thing.

But can we trust the state to make a case-by-case determination on the most extreme circumstances without going too far? I doubt it. The Fourteenth Amendment forbids a state from denying its citizens the privileges or immunities of citizenship, which should included the absolute privilege of conceiving children. It is not inconceivable that a state could properly regulate this area, but it would be a rather drastic change to our society.

However, nothing should prevent the state from prosecuting the parents to the fullest if they criminally neglect their children.

Friday, May 07, 2004

Goodbye, 2L Year! 

Well, 2L year is almost over. Finished Volokh's final, recovered, and now I just have to finish my paper for my copyright seminar and I'm home free. Looking back, it was a good year, and I think I picked good classes. I liked most of my professors. For present and future law students, I highly recommend the following:
That's all I've got for now.

Wednesday, May 05, 2004

Complaining Witness 

Eugene Volokh (whose First Amendment final I will be taking in less than 24 hours) posts that Kobe Bryant's defense has asked that the accuser be referred to at trial as the "complaining witness" rather than "victim" so as not to connote guilt. From my limited experience in criminal trial work, this is not an unusual request. Some defense attorneys routinely ask for this as a trial tactic while others do not, with varying success with judges and prosecutors. I've heard at least one defense attorney use "complaining witness" in normal parlance. I can see why this point would be interesting to the public at large, but it isn't really news in the sense of an unusual trial tactic.

Tuesday, May 04, 2004

ACLU Loses Round One 

District Judge Dale Kimball ruled yesterday that the Mormon church may restrict speech on a block of Main Street it purchased in Salt Lake City. AP story here. The ACLU challenged, although it is hard to tell the precise grounds from the AP story.

One writer for the plaintiffs had this to say: "I did not expect a ruling in favor of . . . fundamental constitutional right from any federal judge who's a product of Utah and its theocracy, which suffers from a severe and unhealthy allergy to dissent." Well, I guess I did not expect anything better than whining from the left, whose bigotted allergy to religion is well documented (Yeah, writer for the plaintiff, that's how you sound). On a side note, Judge Kimball is a Clinton appointee.

Seriously though, this one looks like it would turn on the Establishment Clause, and whether selling the church the land would be permissible (can private parties own a street?). If so, then I guess they could probably do pretty much what they want. It isn't clear what part of the street was sold, nor whether that portion retains any public form qualities in private hands.

Monday, May 03, 2004

Just Left 

TalkLeft reports here that the ACLU has filed a law suit in response to the City of Brunswick enacting laws requiring protesters to obtain permits and put up deposits for expected cleanup. According to TalkLeft, the city is "[c]oncerned that protestors might exercise their First Amendment rights during an economic summit that President Bush will attend . . . ." I'd like to take this opportunity to applaud the ACLU for taking a similar position regarding a similar proposal for this summer's Democratic National Convention.

Sunday, May 02, 2004

Interesting Fed Courts Stuff, I Swear! 

CNN reports that the Supreme Court is considering an interesting case: Whether its 2002 ruling that death sentences must be imposed by juries, not judges, applies retroactively to all inmates sentenced prior to the ruling. When I began this post after reading the CNN piece, I expected a nice short blurb about the actual merits of this case, with something insightful about our changed view of juries in American jurisprudence. But it turns out this case is a baffling maze of federal habeas issues, which I will talk about instead because I am a nerd.

The Ninth Circuit Court of Appeals decision ruling for retroactivity is here. The petition was filed before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so it is not governed by its draconian rules (although the appeal is because it was filed after the effective date, but that doesn't seem to matter). But the warden argued that Teague v. Lane barred retroactive application of a new rule on habeas. Here we go.

Factual background: The case involves an inmate, Warren Summerlin, sentenced to death by a dope-smoking judge in 1982 (I kid you not), and it came into the federal system on petition for a writ of habeas corpus sometime in the 1990s (the procedural history is dense in the Ninth Circuit opinion, as are the facts). While on remand from one appeal, the Supreme Court decided Ring v. Arizona in 2002, declaring only juries may implement a death sentence. Interestingly, Summerlin raised the same issue in his original habeas petition.

For those who don't know, Teague bars a court from applying new rules of criminal procedure (announced after the conviction became final) to be applied retroactively unless they meet one of two exceptions: 1) the new rule makes it unconstitutional to criminalize the primary conduct of the crime, or 2) the new rule is a fundamental, bedrock principle that implicates the fundamental fairness of the justice system. Before we get to those though, the Ninth Circuit skirted the issue entirely: It declared the new rule one of substance rather than procedure, and so Teague did not need to be applied.

The court characterized the ruling as reinstating a substantive law of Arizona called "Capital Murder," complete with elements (the agrivating circumstances) that make it different from normal murder. It even quotes Scalia and Thomas in the process. BUT, the Arizona Supreme Court declared Ring a procedural ruling, so that means the federal court is bound by the state's interpretation of its own law, right? WRONG! The court says the state supreme court's analysis rested on federal law and not state law, so it is not binding (under Erie) on the federal court. It then explains why the state court's reasoning was unpersuasive.

The coup de grace: "We do not necessarily assess whether the action of the Arizona legislature, in response to Ring, effected a “substantive” change to Arizona law; rather, we examine whether the rule announced by the Supreme Court in Ring was a “substantive” one for Teague purposes."

After all that, in the alternative the court found that even if the rule were procedural it would fall under the second Teague exception. The court held that the new Ring rule would substantially enhance the accuracy of capital trials (singing the praises of juries for several pages), and also found that it was a "watershed rule" of criminal procedure (the right to a jury trial under the Sixth Amendment) that implicated the fundamental fairness of the capital punishment system.

Wow. The Supreme Court can really clean house with this one if it wants to. And now, the merits! I'll let Justice Scalia handle my view:
"Juries really do make a difference," [Public Defender Ken] Murray told the court. "Judges are human, they have human frailties. They make mistakes."

But Justice Antonin Scalia responded, "And juries don't have frailties?"
This one should have gone in the Holy Crap segment.

. . . 

Hmmm. Mary Kate and Ashley Olsen got a star on the Hollywood Walk of Fame, mostly for their role playing one barely-sentient person on Full House. My arm was briefly in a television special for the theme park where I used to work, and I was also briefly on Telemundo (in the background during a news segment). The notice about my star must have gotten lost in the mail.

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