Monday, June 30, 2008

Is the Term “Judicial Activist” of Any Use as a Jurisprudential Label?

I don’t think so: as far I can discern the phrase as commonly used means nothing more specific than “a judge who strikes down laws that I [the speaker] think should be upheld.”  Ed Whelan and Gerald Bradley present (somewhat) different views at Bench Memos.

D.C. Circuit: "Bare Assertions" Not Enough to Hold Detainees

In an unsurprising but important decision, the D.C. Circuit has rejected government arguments that factual statements by government officials, presented without any evidence about the source or reliability of the information in those statements, are sufficient to justify holding a Guantanamo detainee as an enemy combatant.  The U.S. has held Huzaifa Parhat as an enemy combatant since December 2001, although (to quote an AP story)  "[t]he Justice Department concedes that Parhat never fought against the U.S. and says it has no evidence he was planning to do so."  A copy of the D.C. Circuit's opinion, with classified portions redacted, is here.  The Court ordered that Parhat is entitled to either a new Combatant Status Review Tribunal or outright release.  The Court was reviewing the case under the narrow appellate procedure allowed by the Detainee Treatment Act, rather than in response to a post-Boumediene habeas petition.

Friday, June 27, 2008

News from the West Virginia Supreme Court

Our friend Alex writes in:

Not nearly as earth shaking [as Heller], but perhaps of more practical importance for those of us who rarely cite constitutional decisions, the Supreme Court of Appeals of West Virginia ruled on Thursday that filing a "John Doe" complaint counts as a mistake under Rule 15(c).

This ruling, which the Court notes goes against the weight of federal interpretation of the federal rule counterpart, will permit later, amended complaints to relate back to the John Doe complaint and thus avoid potential statute of limitation problems. Of course, the plaintiff must have clean hands, and can't fail to investigate the identity of potential defendants.

WV amendment law already liberally allowed amendments, but still -- I think this is a pretty big deal. I've had to make 5-6 Rule 15 motions in the last year. It would seem prudent (and not part of an unfair strategy) to include john doe defendants whenever there is the possibility of unknown defendants and a looming statute of limitations.

Volokh Bloggers on Heller

The folks at The Volokh Conspiracy have the best analysis and commentary on the Heller decision I’ve seen.  Their main page right now is full of goodness, but in particular let me point you to this post (and the previous posts it links to) about the use of originalist methodology by both the majority and dissenters in the case,  this post on the high likelihood that lower courts will find that the Second Amendment rights discussed in the case are incorporated against the states,  and this post containing some quick but insightful observations about the opinions in the case.  Good stuff.

Thursday, June 26, 2008

A Few Preliminary Thoughts on Heller

For purposes of brevity, I’m going to assume in this post that everyone knows the basics about the Heller decision (which Justices took which side, the major sub-issues in the case, etc.)  If you haven’t had a chance to catch up on those matters yet, see this post, this summary of the majority opinion that Ed Whelan has up over at Bench Memos, or wade through the massive and growing array of perspectives on the case up on the main page at SCOTUSblog.  The Court’s opinion itself is here.  As for my own view, I’ll work up some more in depth analysis of the decision in the coming days.  But here are a few things that stood out to me immediately upon reading Scalia’s opinion and scanning the dissents:

-  I don’t really buy into the majority’s argument that the Court did not need to outline a standard of review for gun regulations in the Heller because other cases where that can be done will surely soon follow.  We’re going to see a nationwide wave of Second Amendment suits filed almost immediately (indeed, the NRA filed a suit challenging Chicago’s handgun ban minutes after the case came down today), and we might well see quite a bit of division among lower courts about whether to use an intermediate standard or something more like strict scrutiny.  During oral argument, Chief Justice Roberts did favorably opine that the Court wouldn’t necessarily have to announce a standard of review to decide the case, but I have to believe that the majority would have done so if all five Justices had been able to agree on an standard.

-  I was surprised at the length to which both the majority opinion and the dissents parsed the meaning of the words in the phrase ""to keep and bear arms."  I thought the meaning of the phrase "the people" in the operative clause and the word "militia" in prefatory clause were more important.  While those certainly did receive some discussion,  I didn't expect the arcane linguistic gymnastics that Scalia and Stevens engaged in about keeping and bearing arms.

-  Speaking of linguistic inquiry, I was reminded again that Scalia really, really loves citing dictionaries (both contemporary to the framers and current) in constitutional interpretation, considerably more so than any of the other Justices in the "conservative" block.

-  Near the beginning of the majority opinion, Scalia said this:

In interpreting this text [of the Second Amendment], we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical
meaning.” Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation.

Isn't that pretty flatly untrue? It seems to me that many of the clauses in the Constitution, especially in the Bill of Rights, contain what we think of as legal terms and phrases of art.  How many "ordinary" people in the the 1790's were familiar with Blackstone's Commentaries, the English Bill of Rights, etc., and really understood how those sources contributed meaning to the words and phrases the framers chose?  To the extent that passage describes a feature of Scalia's version of "ordinary meaning" originalism, I think it shows one of the flaws in his particular framework. 

-  Another big case, another long, rambling, and, shall we say, less-than-incisive dissent from Justice Breyer. (Of course, Justice Stevens wrote the main dissent, ie. the dissent that won the approval of all four dissenters.) And again, Breyer pushes for application of a pseudo-pragmatic standard of review --this time, a "balancing of interests" test-- that would entirely eviscerate a constitutional right he doesn't think should exist in modern American society. I'm sure I'll get around to reading his opinion in earnest at some point in the coming days or weeks.  Or months. Or years.  Whenever.


More on Heller (and the quite interesting ruling today in Davis v. FEC striking down the Millionaire's Amendment) later.


D.C. gun laws struck down!

Davis Reversed and Remanded.

Millionaire’s Amendment invalidated.

Last Minute Predictions

D.C. v. Heller:  Unconstitutionality of D.C. laws affirmed.  Decision will be 5-4, with Scalia writing the main opinion and Kennedy concurring (but joining the main opinion as well).  Ginsburg will dissent, in which Souter and Stevens will join. Breyer will file a separate dissent.

Davis v. FEC:  5-4 to declare the Millionaires Amendment unconstitutional.  Alito for the Court, Breyer in dissent.

Wednesday, June 25, 2008

D.C. Guns Case, Other Remaining Cases Come Down Tomorrow


Another Term, Another Major and Crapulent Death Penalty Opinion from Justice Kennedy

A few minutes ago, the Supreme Court issued an opinion, in Kennedy v. Louisiana, that at first glance appears to prohibit imposition of the death penalty for all crimes rather than capital murder. The first link to the 5-4 decision is here. Justice Alito, joined by Chief Justice Roberts and Justices Thomas and Scalia, dissented.  More later.

Tuesday, June 24, 2008

George Carlin, R.I.P.

I wasn’t really a fan of his recent work, but his older material skewering nanny state attitudes about profanity and sex was right on target.  By way of tribute, here’s a version of his famous “seven dirty words” bit:

Of course, another version of this, broadcast by Pacfica Radio, led to the Supreme Court’s atrocious 5-4 ruling in FCC v. Pacifica Foundation that the federal government can regulate even non-obscene broadcasts that are “indecent.”

As Carlin might say, fuck the FCC.

Monday, June 23, 2008

A Couple of Things You Probably Already Knew to Start the Week

First, Lou Dobbs is batshit crazy:

CNN’s Lou Dobbs has been on a tear about the recent tainted-tomato salmonella outbreak, but this time he’s taken it a step further and is calling for the ultimate political punishment.

The “Lou Dobbs Tonight” host placed the blame for the recent salmonella outbreak squarely on President George W. Bush, calling for his impeachment on the June 19 broadcast.

More here.

Second, this week is the week for covering U.S. Supreme Court decisions.  All of the remaining decisions of the term, including the D.C. guns case and the Louisiana child-rapist death penalty case, will be handed down in the next few days.  The madness starts this morning at 10:00am.  The folks at SCOTUSblog will be liveblogging the opinion announcements this week,  and I shall attempt to provide the most prompt coverage my schedule allows.  Also, I’m dedicated to making some discussion of the handful of constitutional cases from the past few weeks that I still haven’t covered, and of updating my admittedly languishing Constitution Cases of 2007-2008 compilation feature.  In short, it’s going to be a busy week here on the blog, but a very fun and (hopefully for you readers) interesting one as well.

Wednesday, June 18, 2008

Is the Legal Research Duoploy Beginning to Crumble?

Every lawyer or law student knows that when it comes to legal research services, whether electronic or in print, Westlaw and Lexis are the only major firms in the business.  However, most people in the legal profession also know that over the past few years a number of new, purely net-based companies have entered the fray with aim of crashing the hugely-profitable "Wexis" party.  There's a great article on right now about the progress that some of those companies have made and the challenges that remain for them as they try to catch up to Westlaw and Lexis in coverage and functionality.  The bottom line: with the building of “open” electronic databases of newly released cases, the use of cheap foreign labor to slowly but steadily transcribe the text of old cases, and advances in computer science search algorithms, competitors like Casemaker (with its useful but buggy and incomplete service offered through state bar associations) are gaining some traction.

I’ve always wondered why one of the many search or content providers out there on the net hasn’t taken up the opportunity of creating a legal source search engine and database.  Start up costs would be quite low –compared to the usual start up tech service—, any tech company worth its salt could offer much more useful search technology than Westlaw or Lexis currently provide, and lawyers are an attractive demographic for advertisers.  Alas, my dream of being able to use Google Law Search (substitute your favorite search provider) to quickly find relevant sources of law at little or no cost doesn’t look like it’s going to come true anytime in the foreseeable future, but here’s hoping that one of the competitors that are making the attempt will soon develop into a strong third option in legal research.  

Saturday, June 14, 2008

Wow: Brady Organization Head Admits Defeat on 2nd Amendment Perceptions

According to the President of the Brady Campaign to Prevent Gun Violence:

We've lost the battle on what the Second Amendment means.  Seventy-five percent of the public thinks it's an individual right. Why are we arguing a theory anymore? We are concerned about what we can do practically.

Full story from ABC News here.  Hat tip: Eugene Volokh at The Volokh Conspiracy.

Friday, June 13, 2008

Tim Russert: R.I.P.

He passed away today at the age of 58.


Update: Initial age figure based on an error in an early news report. Corrected.

Update 2:  Should have noted that Russert was trained as a lawyer before becoming a journalist.  That explains a lot about his terrific interviewing style.

Thursday, June 12, 2008

An Uber-Quick Analysis of Boumediene v. Bush

So the long-awaited case on the rights of enemy combatants held at Guantanamo Bay came down this morning, and it’s a doozy (in a number of different senses).  The overall vote was 5-4, with Justice Kennedy providing the swing vote for the prevailing Breyer-Ginsburg-Souter-Stevens block.  The syllabus alone is eight pages long, and together the main opinion by Justice Kennedy, the concurring opinion by Justice Souter, the dissent by Chief Justice Roberts, and the dissent by Justice Scalia take up 134 pages. I confess that I’ve only had time to read the syllabus today (which in turn only covers the main opinion) and there’s a whole lot of substance even there.  For now,  let me address, very, very briefly and at a very general level, what seem like the two most important points to come from the case.

1.     The determination of whether a particular set of detainees is covered by the Constitution’s Suspension Clause, which guarantees that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it,” is not made solely based on where the detainees were captured or are being held.  The Bush Administration had pushed for application of such a territoriality-based standard, but instead the Court decided that its precedents required adoption of a "functional approach."  The majority announced a three-factor test for determining whether the Suspension Clause applies to a group of detainees U.S.: courts must consider "(1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ."  Applying that test, the majority concluded that detainees held as enemy combatants at Guantanamo are covered by the Suspension Clause.

2.    The Court also determined that Congress has invalidly suspended access to writ as to the detainees because the the substitute legal process that Congress provided for the detainees -- an extremely government-friendly Combatant Status Review Tribunal and very circumscribed review of the CSRT determination in the D.C. Circuit Court of Appeals-- is no real substitute at all.  The majority concluded that

Petitioners have met their burden of establishing that the [review process] is, on its face, an inadequate substitute for habeas. Among the constitutional infirmities from which the [process] potentially suffers are the absence of provisions allowing petitioners to challenge the President’s authority ... to detain them indefinitely, to contest the CSRT’s findings of fact, to supplement the record on review with exculpatory evidence discovered after the CSRT proceedings, and to request release.

(All quotes are from the syllabus provided by the Clerk of the Court.)

I wish I had the time today to read all the opinions and begin to offer some more detailed discussion and analysis, but I'll get around to in the next few days.  In the meantime, there's lots of decent coverage of the decision out there, and if you have 15 or 20 minutes to spare you can read the syllabus (or, indeed, if you have the time and the inclination the actual opinions) here.

Tuesday, June 10, 2008

Catching Up with SCOTUS (Part One)

So it's been a good while since my last post on the Supreme Court's activities this term, but there's no time like the present to catch up.  The Court has issued several constitutional decisions over the last month and a half.   Although, with the exception of Baze v. Rees, none of these decisions came involved blockbuster cases, several are quite interesting in more narrow ways (and a couple are as dull as paste).  There are too many cases for one post of even remotely reasonable length, so here’s part one of two.


April 15:

Two decidedly unsexy cases were handed down this day.  Fittingly for IRS filing deadline day, both involved the intersection of taxes with constitutional requirements.  In MeadWestvaco Corp. v. Illinois Dept. of Revenue, the Court held (brace yourself) that under the Dormant Commerce and Due Process Clauses a state cannot tax a company's capital gain realized for a sale of a subsidiary at an apportioned rate where the subsidiary served an "operational purpose" in the owner's business but was not unitary with the owner.  (Actually, that's a bit more interesting than it sounds.  Or maybe I just need to get out more.) Justice Alito wrote for a unanimous Court; in a separate opinion Justice Thomas took the opportunity to once again carp about the Dormant Commerce Clause (ie. he doesn't think it really exists in the Constitution) but concurred in the judgment and the main opinion because neither party asked the Court to re-examine its precedents.

In U.S. v.Clintwood Elkhorn Mining Co., the Court rejected an argument that a taxpayer may escape the normal time limitations for gaining a refund of an improperly collected federal duty where that duty was imposed in violation of the Export Clause.  (To refresh memories, the Export Clause says that "“No Tax or Duty shall be laid on Articles exported from any State.")  Chief Justice Roberts wrote for an unanimous Court.  To be honest, the Court's decision doesn't do much in way of constitutional interpretation -the Court basically dismissed the taxpayers' constitutional arguments as irrelevant to the outcome of the case- but I include it because we don't get enough cases from SCOTUS that even tangentially discuss the Export Clause.  So there.


April 16

Here we come to Baze v. Rees, the Kentucky lethal injection case.  I've already written about this one in some depth and don't really have anything to add at this point, so let's move on. 


April 23

Under the Fourth Amendment as  interpreted by the Court, it is constitutionally reasonable for a police officer to arrest without a warrant anyone that he has probable cause to believe has committed a crime in his presence, no matter how minor the crime committed or apparently harmless the suspect.  But what about where an officer makes an arrest with valid probable cause for an offense that state law says cannot trigger arrest?  The Court faced such a case in Virginia v. Moore, where Virginia police officers arrested a man for driving under a suspended license, an offense that Virginia state law says can only (absent special circumstances) result in the issuance of a citation.   Writing for eight Justices, Justice Scalia forcefully side with the state.  Justice Ginsburg concurred only in the judgment.

Although Virginia’s law prohibited arrest for the offense committed by Moore, its courts have not applied a state law exclusionary rule to evidence gained from such arrests.  Thus, Moore was left with challenging his arrest and the subsequent search incident to arrest (which turned up crack cocaine on his person) under the Fourth Amendment.  Regarding the arrest, Justice Scalia wrote that their was no founding-era historical practice of incorporating state law standards into Fourth Amendment “reasonableness” analysis, and application of a general reasonableness balancing test -considering the state’s legitimate governmental interests vs. an individual’s privacy interests- favored the state.  On challenging the search incident to arrest, Moore raised the interesting point that the Court has, on numerous occasions, said that evidence gained from a search incident to an “unlawful” arrest must be suppressed.  However, the Court quickly dismissed that argument, saying that when it said “unlawful” in past cases it really meant “unconstitutional.”

(One may one wonder why past opinions didn't just use the word "unconstitutional" then.  Indeed, I wonder if some of the past Justices who wrote those opinions might say, if they could, "when we said 'unlawful, we meant 'unlawful.'"  But I digress.)

Perhaps the most useful aspect of the opinion is that it lays out a relatively straightforward two-step framework for answering Fourth Amendment reasonableness questions.  First, one looks to evidence   -norms, statutes, common law, etc.- from the era of the framing to see whether the practice was considered reasonable at the time or not.  If that provides no clear answer (whatever "clear" means in this context), one must turn to applying state interests vs. individual privacy interests balancing to reach a determination.  Both of those approaches had been used in lots of past cases before, but I'm not sure that the Court ever directly stated how they fit together until Moore.

I've just really scratched the surface of the case here; if you're at all interested in Fourth Amendment law you really should read the whole thing.

Tune in next time for the rest of the constitutional cases recently decided by the Court, including another Dormant Commerce Clause case (huzzah!) and a decision exploring whether rational basis scrutiny extends to the public employment hirings and firings.  Also, look for an updated Constitutional Cases 2007-2008 feature.  (Eventually.  At some point.)

Monday, June 9, 2008

The Least Reassuringly Named Government Web Site Ever

That would be

On a slightly lighter note, the site contains what very might be the dumbest and least frequently asked FAQ in history:

Why are pandemics such dreaded events?

Saturday, June 7, 2008

The Perils of Not Being Able to Shut Your Arrogant Yap, Demonstrated Yet Again

At Belmont Park today, Kentucky Derby and Preakness winner Big Brown failed to become the first horse since 1978 to win the Triple Crown.  Big Brown's trainer, all-around sleazebag Ron Dutrow Jr., had been spouting off about the horse's invincibility since the Derby, saying most recently that a Belmont win was a "foregone conclusion."

Big Brown was pulled up before the end of the race and finished dead last.

Wednesday, June 4, 2008

Should West Virginia Have An Intermediate Appellate System?

As all of my in-state readers know (or should know), West Virginia is one of a relatively few states that has no intermediate appellate court system.  The Charleston Gazette had a story regarding this judicial peculiarity on Monday, reexamining the issue in light of the Supreme Court of Appeals' decision to deny certiorari in a case involving a multi-hundred million dollar verdict against Chesapeake Energy, leaving Chesapeake with no appellate avenue.  (Chesapeake subsequently canceled its plans to build a new headquarters complex in Charleston.) 

The article doesn't actually raise any new arguments either for or against the idea that we should create an intermediate court, but it did contain a couple of factual points that struck me as quite interesting and that, admittedly, I hadn't known.  First, though (as far as I know) Hell has not yet frozen over the state Chamber of Commerce and the state trial lawyers advocacy group agree that West Virginia should have some type of intermediate appellate system.  Second, West Virginia is even more idiosyncratic in its appellate setup than I realized:

The Supreme Court has total discretion over accepting appeals. It refused nearly 62 percent of the petitions it considered between 2000 and 2006, the latest year for available figures. In 2006, its rejection rate reached nearly 84 percent.

West Virginia's is also the only "court of last resort" with such complete discretion among the 10 states lacking an intermediate appeals court, according to the nonpartisan National Center for State Courts. Of the rest, all must accept civil [note: I assume the reporter meant criminal here] appeals except New Hampshire, which is mandated to accept only capital murder death penalty cases.

I knew that our Supreme Court has total discretion in hearing appeals -except regarding worker's compensation claims, it should be noted- but I didn't know that we were basically* the only state with such a scheme, even among other states with no intermediate system.

As you might be able to tell, I agree that West Virginia should have an intermediate appellate court system.  Having a right to appeal, at least in criminal and important civil cases, is beneficial to the administration of justice.  Moreover, as it stands I don't think the Supreme Court produces enough precedential decisions, particularly in certain unsexy areas of the law, to give lower courts and administrative agencies the guidance they need to adjudicate consistently, and I highly doubt that solutions focusing only on the Supreme Court's docket -like requiring the Justices to take certain types of cases- would make much of a dent in the problem.  The first objection usually raised in response to proposals to create an intermediate system is cost, and while that's certainly a serious point I'm sure there are reasonable ways to  fund the change.

But what about more purely jurisprudential objections?  Any readers who would object to creating an intermediate appellate court system if the cost issue was off the table?  And for those readers who, like me, favor creation of an intermediate level, what sort of system would you like to see set up?  (For instance, what sort of cases would generate an automatic right of appeal?)  My inquiring mind wants to know....


*  Yes, I realize that if New Hampshire didn't have the death penalty it would be in our class as well.  Although once New Hampshire politicians realized that their state was the only state besides West Virginia in the category they might well feel an urge to change their system.


Correction:  Turns out The Charleston Gazette was basically wrong about New Hampshire’s Supreme Court: it has a de facto policy of automatically accepting appeals in most types of cases that are appealed from trial courts.  I regret passing along the error.  Hat tip to court-o-rama for a link to a correct discussion of the New Hampshire Supreme Court’s role.

Sunday, June 1, 2008

Evil Wal-Mart Strikes Again

Dastardly Wal-Mart is in the news again, this time for putting the squeeze on suppliers of food products to the mega-chain:

With gas, grain, and dairy prices exploding, you'd think the biggest seller of corn flakes and Cocoa Puffs would be getting hit by rising food costs. But Wal-Mart has temporarily rolled back prices on hundreds of food items by as much as 30% this year. How? By pressuring vendors to take costs out of the supply chain.

"When our grocery suppliers bring price increases, we don't just accept them," says Pamela Kohn, Wal-Mart's general merchandise manager for perishables. To be sure, Wal-Mart  isn't the only retailer working to cut fat from the food chain, but as the largest grocer - Wal-Mart's food and consumables revenue is nearly $100 billion - it has a disproportionate amount of leverage.

Just another example of this malicious corporation throwing around its heft to hurt those who have to deal with it.  And for what purpose?  To keep food prices low for its red state, gun owning, morbidly obese, white trash  "customers"?  I fully expect and demand that Democratic leaders denounce this move with all the force that they can muster, just like they have denounced Wal-Mart "price consciousness" in the past.  In the meantime, I look forward to paying six dollars for a gallon of milk at my locally-owned store.