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Thursday, July 29, 2004

Get a New Pic! 

I see my John Kerry blog pic is now a broken link. I was never that impressed with his logo (which I don't even think was an official blog logo), which just consisted of his name. There is nothing at the Kerry-Edwards ticket blog to replace it with, so I'll leave it as a broken link. GW, on the other hand, seems to have a new, more badass logo, and his site makes it easier to link to it with these logos.

Not that I read either site, but I think GW's looks better.

Pragmatism 

The trial process affords a look at a world that law school doesn't teach, a world where the facts matter just as much as the law, and the clash between law and justice somehow seems to blur a little more than it should. For instance, take the subject that all students of criminal law are familar with: the motion to supress evidence because it was obtained in violation of the Fourth Amendment. In California, the procedural mechanism used to move to exclude evidence in this way is Penal Code Sec. 1538.5. This section spells out what the moving party must state in order to make a prima facie case that the People must then meet with evidence. Among other things, the defense must spell out a factual and legal basis for excluding the evidence. Depending on the situation, this can be as simple as alleging that a search took place without a warrant.

Now, what if the defense never gives any factual basis, and only quotes generally applicable case law stating that evidence may be excluded under the Fourth Amendment? What if it never even says what evidence is sought to be excluded? And what if the defense never even makes that allegation that a search was warrantless? The law would tell you that the motion should be denied; failing to state even a factual or sufficiently specific legal basis for the motion clearly would not meet the statutory standard. Moreover, this would make practical sense--it would deter frivolous motions, and it would give the prosecution the chance to meet the correctly cited authority with contrary authority. But what would the practical consequences of this be? For failing to meet a "technical" requirement of a statute, otherwise inadmissible evidence (assuming it is inadmissible) is allowed in to the trial? At the very least the defendant would be left without an opportunity to be heard on the merits of the issue (yes, yes, there was an opportunity to file the motion correctly, but you know what I mean). And isn't the mistake easy enough to correct? After all, the judge can simply inquire what evidence is sought to be excluded, and a more specific legal basis for the motion, which will not overly prejudice the prosecution.

But why should shoddy work be rewarded? Why should legal gamesmanship be allowed simply because a sanction may hurt a criminal defendant who, after all, is relying on a third party to carry out his criminal defense? I don't hold the answers to these questions, only observations and frustrations, but I will note that for the reasons given above, the times when there are practical differences between allowing the motion to proceed and denying it for facial invalidity are few.

Monday, July 26, 2004

The Brawl 

For Score Bard, art and html collide in this poem. Excellent.

More on Jurisdiction Stripping 

I mentioned elsewhere that I think the legislation that recently passed the House stripping the federal courts of their jurisdiction regarding cases determining the constitutionality of the DOMA is unconstitutional, and I am hardly alone in this regard. However, for me at least, and for constitutional scholars, it may not take much tweaking to make it into a law likely to be accepted as constitutional. Take the following examples:
  1. No courts created by Congress have jurisdiction to hear cases regarding the constitutionality of the DOMA, but the Supreme Court retains appellate jurisdiction. This may satisfy those who, like uber scholar Henry Hart, require that the essential function of the Supreme Court be retained.
  2. Only the federal district courts may hear challenges to DOMA. This may satisfy those who, like Akhil Amar, believe that some federal review may be mandated by the Constitution, but not by all courts.
  3. The Circuit Courts may review decisions of the highest state courts regarding constitutional questions about the DOMA. While different from our current system, it would allow some level of federal review, though again not national review.
The list could go on. The point is that federal court review does not necessarily mean review by each level of the current federal judiciary, or even the Supreme Court, nor does it necessarily mean consistent nation-wide enforcement of constitutional decision-making. Of course, there are theories that could argue otherwise, but I imagine a great many constitutional questions about jurisdiction stripping would be silenced by an intermediate position that cuts off certain types of federal review, thus creating practical difficulties for obtaining a certain kind of decision from a federal court, without cutting off federal review entirely.

Jurisdiction Stripping 

i have refrained from blogging generally about the bill that recently passed the House of Representatives that would eliminate the ability of federal courts to pass on the constitutionality of the DOMA, which would, in effect, allow any state to refuse to recognize out-of-state same-sex marriages. Alas, a Blog is the latest I have read to weigh in, hoping that the law is unconstitutional. However, one of the commenters said something that I think really gets to the heart of the issue: deciding who is the correct decisionmaker:
It'd basically become a 'legislative' dictatorship (if there is such a thing) and the constitution would start to become meaningless. These Republicans really seem not to care about the constitution as much as they hate the thought of gays pursuing equality and happiness.
Let's try this on for size, and see if it means the same thing:
It'd basically become a 'judicial' dictatorship (if there is such a thing) and the constitution would start to become meaningless. These Liberals [?] really seem not to care about the constitution as much as they hate the thought of a woman's ability to terminate her pregnancy being impeded.
I doubt there are many supporters for both positions above, but they only differ in the basic assumptions that one is willing to believe, namely whether Congress or the Supreme Court is the proper body to interpret the Constitution in the manner described. There are arguments on both sides, but stating absolutely that the Judiciary is the sole legitimate expositor of the Constitution is tantamount to saying it is capable of operating without any meaningful check on its power. This cannot be what Our Federalism requires, for I don't think it would be argued by even the most ardent supporters of federal judicial review that the Judiciary is always right.

The courts have taken many issues away from the jurisdiction of legislatures, so it is only with great caution that we condemn any reciprocal action taken by Congress in this case. Personally, I don't believe this recenly passed law is Constitutional, but I offer the following arguments for why the question is sticky:
  1. Doesn't the plain language of Article III allow the Congress to restrict the courts' jurisdiction? Getting around language is not the domain of a knee-jerk response.
  2. Why should the courts be able to decide an issue when ruling one way would be unconstitutional? This is at least arguably the case here: The Full Faith and Credit clause was never meant to mandate a state's recognition of a marriage that deviates in drastic regard from that state's law. Congress is only preventing the courts from taking an illegal action by upholding its interpretation of the Constitution.
  3. The simplest counter to the slippery slope argument is that it is easy not to go down the slope.
  4. Isn't marriage really a state law issue anyway? Nothing prevents state courts from ruling on the constitutionality of it recognizing out-of-state same-sex marriages.
Just the cantankerous federalist in me trying to discuss this issue more fully. Pay it no mind.

Survivor 

Well, it looks like Survivor: Blogosphere has finally fizzled over at De Novo, since the current challenge ends Friday and Milbarge has seemed to have defaulted (and, sadly, Wings hasn't gotten any links yet). This leaves the question: What will the prize be, and will this make De Novo better?

I for one have two complaints about the current lineup. First, the site is too grey. Maybe it's just me, but I think this is a big deal.

Second, though, is that there is no Unlearned Hand. I was a big fan of En Banc back in the day, and what really made it pop were the long comment strings, usually generated by Chris's posts with UH throwing in some comments for good measure. But there was also the more conservative flavor of UH's posts that contrasted with the rest of the bunch. Without him (and without Greg, but I don't recall him expressing much in the way of politics), we are left with one ultra liberal, one garden variety liberal, one usually-liberal-but-kinda-libertarian-in-an-unoffending-way, and Jeremy.

UH may have went out on a bad note, and his former co-bloggers were rightfully angry. I'm not suggesting that they bring him back. But I am noting that if De Novo is to regain the stature of En Banc (which, if not the most popular blog on the planet, was a joy to visit), there needs to be a look at what worked in the past, and I think it undeniable that UH was a part of that.

Maybe the survivor will help with this goal. Just my two cents.

Wednesday, July 21, 2004

Minority Report? 

PG postulates over at the De Novo on the MATRIX law enforcement database, the ACLU's project to defund it, and Orin Kerr's thoughts on the matter.  At the end, she writes: "The ACLU appears to fear that the government and the GAP will share information, a la Minority Report, in a future where such cooperation is supposed to help the citizen-consumer but actually aids the authorities in tracking down Tom Cruise's eyeballs."

For what it's worth, I'm more worried about the government gathering information and then selling it to private parties than I am about private parties collecting information for the government.  Now, I must immediately qualify that last statement: In the one area where we truly fear the government, law enforcement, I am not advocating something like private party circumvention of the Fourth Amendment and providing information to the government, and I think Fourth Amendment doctrine can secure this area adequately.  (There are other complications I can think of, but won't go into them now.)  But, in general, I would rather have the government pool information useful to it, regardless of the source, because I don't fear being annoyed by the government (who, asside from law enforcement, has better things to do) as much as I fear being annoyed by private parties. 

Advertisers, marketers, and other such distractions could easily mount with too much access to information.  The adverse effects of such activities should not be downplayed: lost time, wasted paper (and space) used in the mail, junk email, and the danger of private individuals getting information and doing nasty things with it like stalking.  I don't fear these things from government itself; it does not try to sell people things, so there is no profit motive to annoy the public like there is in the private sector.  So, with the Fourth Amendment caveat, I fear the private sector more. 

If the government were to "share" its information with the private sector, rather than the other way around, I predict bad things, whereas a non-pretextual gathering of information voluntarily given to a third party would not involve a similar threat from the government.  The real nightmare of Minority Report that the ACLU should go after is creating a world where Coca-Cola can scan my eyeballs and piss me off with 3-D ads. 

Monday, July 19, 2004

Which Side? 

Spending my second summer interning at a prosecutorial agency has given me some perspective on what I want to do with my life, not because of anything improper that goes on there, but just because of all the little things that can pile up in one's working life no matter what side of the table one sits on.  For a long time I thought I could never be a public defender: the zealous representation of criminal scum, the seemingly sincere invocations of the federal Constitution for the slightest irritations, the seemingly apparent subbornation of perjury, etc.  Because of these, and because of my personal politics, there was always only one side to be on: prosecution. 
 
But I am starting to see that both sides come with their drawbacks.  For one, whatever beating my conscience would take defending the guilty, I don't know that it would withstand any better the prosecution of small quality-of-life crimes that form part of a political agenda.  And defense has an allure all its own as well--trial strategy is different, the kinds of skills that can be honed are different (like cross-examination), and the all-out argument that representing the People does not allow are all plusses.  That, and having met some defense attorneys who do not fit the profile I have spelled out above, all make the decision that much harder. 
 
In the end, I don't know that I can find a great deal of ideological satisfaction on either side, and in whatever I do I plan to be on the side of justice, whatever it will task me with.  But one thing is for certain: I will never understand why someone would not want to do criminal law; it is infinitely more interesting than any other practice area.  For what it's worth, for the new law students undecided . . . .

Saturday, July 17, 2004

Back in Business (Hopefully) 

Blogging has been slow for me for two reasons: First, I moved and don't have internet at home yet, and second, work has been busy these last few weeks. Because of these two factors, but also because the other bloggers were better, I have recently been booted from De Novo's Survivor: Blogosphere challenge.

However, I will still try to post some interesting stuff here on Ichiblog, and hopefully Usama will blog some more as well. Gotta get my readership up from 20!

When Did Elton John Become a Complete Moron? 

The BBC has this story, headlined "Elton attacks 'censorship' in the US" about how artists here are afraid to speak out against the war in Iraq because of the Bush administration's "bullying tactics." This leads me to confirm my earlier feelings: no one should listen to Elton John, and his sole purpose should be to occasionally sing Rocket Man for our amusement.

This article is short, so maybe he redeems himself elsewhere, but I doubt it. His sole example is comparing country singers Toby Keith and the Dixie Chicks. Toby Keith, who is pro-Bush, has enjoyed success, while the Dixie Chicks were blasted for their attacks on GW a while back. To Sir Elton, this shows a stifling of speech on the level of McCarthyism, and should be contrasted with the free spirit of criticism of the 60s. However, since I've thought about this for five seconds, I have a different take:

Country music is popular throughout the country, but I wager it has an extremely large fan base in the midwest, the south, and other areas synonymous with Republicans. Also, until fairly recently, a majority of Americans supported president Bush and the war in Iraq (although one wouldn't know this if they only hung out on college campuses or listened to, oh, I don't know, entertainment business elites?). Ergo, a political comment that runs against the main views of the artists' fans would quite understandably bring criticism and a drop in sales. Although one could certainly argue that a musician should not be punished for having political views when people like his or her music, Elton is arguing that politics is exactly what people should be focused on, and because artists are not being handsomely rewarded ("there have been virtually no anti-war concerts - or anti-war songs that catch on, for that matter" --Elton) for their views, there must be something wrong with America.

I'm sorry, but I don't see administration strong-arm tactics when country music fans refuse to empty their pockets for anti-war artists who use the forum given to them by their fans to speak about things their fans don't like. It's called the free market.

But even if I took this isolated example as evidence of a problem, what about all the successful artists who express anti-war views? Didn't Sean Penn win an oscar? Isn't there an inordinate amount of support for Michael Moore's propaganda flick? How many musicians are raising money for John Kerry? (Is it because of his stance on health care?) There have been plenty of anti-war songs and videos made, many by artists that continue to enjoy success, so how is lack of inordinate success censorship?

Elton John is just one more entertainer whose voice on this issue should remain irrelevant.

Friday, July 16, 2004

Missing: One U2 CD 

Somebody reports here that a CD containing unfinished songs from the upcoming U2 album was stolen while the band was shooting the cover photo.  I'm all for free culture involving intellectual property, but I also believe in a right to privacy in intellectual property: Until an artist releases material to the public, they should be able to keep it away from the public.  In case the thief is one of the twelve people who read my blog: give the CD back. 
 
U2 rules!

Wednesday, July 14, 2004

ConLaw & BALCO Fiasco 

I've been sitting in my cave with Barbri books reading
the occasional ESPN article to keep up with the goings
on in the infidel sports leagues. This article made me
wonder what kind of constitutional challenges people
like Marion Jones might be able to make... got ideas?

Friday, July 09, 2004

Movies of the Future 

This story notes that more people are downloading movies, and the film industry speculates that this may have an effect on theater-going and DVD purchases, citing a 3 % decline in ticket sales in recent months.

First of all, the sales decrease could be the result of many things, and sounds suspiciously like the debunked RIAA drumbeat about P2P networks affecting sales. However, realistically speaking, a world with a free alternative to paying to see movies will have a significant impact on sales, though I suspect revenues will hardly drop to zero (for example, DVD quality still surpasses download quality, and going to the theater is an experience that the computer cannot replace).

Still, those of us who advocate more of a free culture should realize that the world of multi-million dollar hollywood productions may fade away if the overinflated market that can pay for such films also cools. But also, those who oppose the freeing of culture should also realize that certain factors will mitigate this loss. First technology should lower the cost of creating high quality special effects, and films in general. Second, the money used for the biggest blockbusters largely goes to talent and advertising; the former can simply go down, and the latter can also be aided by technological advances.

I would like to see a serious look at the future of filmmaking that does not hold fast to the status quo and realistically confronts the economics of free culture, rather than predicting a doomsday scenario when downloaders stop paying to see every hollywood crapfest that comes out in July.

Last Blogger Standing 

I've been a little slow to update, in no small part because Verizon sucks and my DSL isn't working. In the meanwhile, Survivor: Blogosphere has begun over at De Novo.

Tuesday, July 06, 2004

Fed Courts Follow Up 

A few months ago, I posted about the case of Schriro v. Summerlin where the Ninth Circuit found a new rule of constitutional law in death cases to apply retroactivly in habeas corpus cases under Teague v. Lane. I also remarked on how it looked like that court jumped through several hoops to get there: first that the rule was procedural rather than substantive (despite the Arizona Supreme Court's holding otherwise), and second that it was a "watershed" rule under an exception to Teague.

The Supreme Court recently reversed, quickly disposing of the Ninth Circuit's reasoning. Per Justice Scalia, the Court reasoned that a new rule was not procedural because the key question is how Arizona law applied the rule to the elements of capital crime. "This Court's holding that, because Arizona has made a certain fact essential to the death penalty, that fact must be found by a jury, is not the same as this Court's making a certain fact essential to the death penalty. The former was a procedural holding; the latter would be substantive." Also, "[t]he Ninth Circuit's conclusion that Ring nonetheless "reshap[ed] the structure of Arizona murder law," is particularly remarkable in the face of the Arizona Supreme Court's previous conclusion to the contrary."

Under the second rationale, the accuracy of juries was found to be not definitely significantly better than judges, despite some feeling to the contrary, and therefore did not mandate retroactive application on habeas. Among the reasons are "juries' tendency to become confused over legal standards and to be influenced by emotion or philosophical predisposition." Scalia also points to the jury's treatment in other countries, which professor Volokh discusses here.

So those who were eagerly awaiting the ending of the Teague question in Summerlin, there you go.

Sunday, July 04, 2004

More on the Stars and Stripes 

Per Juan Non-Volokh's Sunday Song Lyric, I write separately to note that Francis Scott Key set his poem to the tune of a popular British drinking song. See here. So, have a drink for our national anthem, and one for the folks who aren't home this July 4th. Cheers.

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