The Volokh Conspiracy

Update on the ABA and Law ProfessorTenure Requirements,

courtesy of the TaxProf blog. Basically, an ABA task force could not reach a consensus on the issue. My previous post on the subject can be found here.

Improv Classes in DC:

Washington Improv Theater is looking for students to fill its intro improv classes. I took classes with these folks several years ago, and they are lots of fun, and also a good way to overcome shyness about speaking/performing in front of groups. If you're a local big-firm associate, you might even be able to get your firm to pay for your class, as will teach some useful skills. Even if not, many of my former classmates pointed out that "it's a lot cheaper than therapy."

This day in history:

June 22 is the day they started bombing my mom.

Supreme Court Trivia: Who was nominated to fill a vacancy on the United States Supreme Court that was never filled?

For the answer, click here.

Visions of Surveillance in "24" and "The Wire": Peter Suderman has an interesting essay on attitudes towards surveillance in the latest issue of The New Atlantis. From the intro:

Two hit television dramas exhibit the complex human response to technological surveillance: 24 and The Wire. Both shows shed light on the growing societal awe of surveillance technology while also reflecting our fear and uncertainty about our ability to master it. Although surveillance technology dominates the worlds of both shows—24's built-up city of Los Angeles and The Wire's decaying Baltimore slums—the shows' overarching attitudes towards surveillance differ greatly. Fox's 24 bows in awe of the omnipotence and omnipresence of satellites and fiber optics, while HBO's The Wire regards phone taps and recording devices suspiciously, as flawed tools that reveal the corrupt nature of bureaucracy and are, at best, necessary evils. Thus, the difference between the two shows is one of belief: one’s view of surveillance technology is based in faith, the other's in doubt.

Judicial Activism Switching Sides?: In a decision handed down today, United States v. Goddard, two judges who are each on the short-list for a future Supreme Court nomination of their respective parties came down on opposite sides of a Fourth Amendment case. How they lined up is pretty interesting.

  The first judge wrote a short concurrence noting that the court was bound by Supreme Court and circuit precedent, and thus had little choice but to rule in the government's favor. The second judge dissented, taking issue with decades of caselaw from the Supreme Court and lower courts and urging the rejection of the Supreme Court's test and the substitution of a new, more restrictive test to better protect the rights of minorities from abusive police practices.

  The fascinating thing about this? The concurring judge was the Democratic short-lister, David Tatel. The dissenting judge was the Republican short-lister, Janice Rogers Brown.

  Thanks to Howard for the link.

Muslims and Religious Exemption Law:

I have a piece on the subject in National Review Online this morning. Here's the introduction:

Recent years have seen a set of requests by Muslims for exemptions from generally applicable laws and work rules. A Muslim policewoman in Philadelphia, for instance, asked for an exemption from police-uniform rules so that she could wear a Muslim headdress. A few years ago, a Muslim woman in Florida asked that she be allowed to wear a veil in a driver’s license photo. Last year, a Muslim woman in Michigan asked that she be allowed to testify veiled in a small-claims case that she brought.

All these claims were rejected by courts, and likely correctly, though the arguments for the rejection are not open-and-shut. But some of the public reaction I’ve seen to the claims suggests that people are seeing such claims as some sort of special demands by Muslims for special treatment beyond what is given Christians, Jews, and others. And that turns out not to be quite so: While the claims are for religious exemptions for Muslims, they are brought under general religious-exemption statutes that were designed for all religions and that have historically benefited mostly Christians (since there are so many Christians in America).

The Muslim exemption claims are plausible attempts to invoke established American religious-exemption law, and they deserve to be treated as such -- even if there are good reasons for rejecting them, as American religious-exemption law recognizes. Let us briefly review this law, so that this becomes clearer....

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Vice Presidency in the Legislative Branch for Purposes of Executive Oversight, OVP Claims: The Onion reports that the Office of the Vice-President is refusing to comply with executive oversight rules on the theory that for purposes of executive oversight, the Office of the Vice President is actually part of Congress:

  For four years, Vice President Dick Cheney has resisted routine oversight of his office’s handling of classified information, and when the office in charge of overseeing classification in the executive branch objected, the vice president’s office suggested that the oversight office be shut down, according to documents released today by a Democratic congressman.
  [O]fficials familiar with Mr. Cheney’s view said that he and his legal adviser, David S. Addington do not believe the executive order applies to the vice president’s office because it has a legislative as well as an executive status in the Constitution. . . .
  . . . Mr. Addington stated in conversations that the vice president’s office was not an "entity within the executive branch" because, under the Constitution, the vice president also plays a role in the legislative branch, as president of the Senate, able to cast a vote in the event of a tie.

UPDATE: My apologies -- this story is not in The Onion, but rather the New York Times. I regret the error.

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Wash Post Profiles Influential Legislator:
Vice Presidency in the Legislative Branch for Purposes of Executive Oversight, OVP Claims:

EPA May Tighten Ozone Standard Again:

The Environmental Protection Agency (EPA) is proposing to tighten the National Ambient Air Quality Standards (NAAQS) for ground-level ozone, aka "smog." Specifically, the EPA is proposing to lower the ozone NAAQS from 0.08ppm to somewhere between 0.070ppm and 0.075ppm, though it will also consider tightening the standard to 0.060ppm and leaving the standard as is. EPA has posted background material on the proposed rule change here.

There was an all out political and legal brawl the last time the EPA tightened the ozone standard. In 1997 the Clinton Administration dropped the standard from 0.12ppm (measured as a one-hour average) to the current standard of 0.08ppm (measured as an eight-hour average). The EPA tightened the NAAQS for fine particulate matter at the same time. Industry groups and a handful of states fought the standards to the Supreme Court and back, but were ultimately unsuccessful. As the Washington Post reports, this proposal could prompt an equally fierce fight.

Under the Clean Air Act, the EPA is required to periodically reevaluate existing standards in light of new scientific evidence, and propose changes if the agency concludes that existing standards are insufficient to protect public health with an adequate margin of safety. The EPA's decision to reevaluate the ozone NAAQS was prompted by a lawsuit filed by several environmental groups, alleging that the agency had failed to conduct the required periodic review. Interestingly enough, litigation over the 1997 standard has continued through to this year, and the EPA has yet to finalize all the regulations necessary to implement the 1997 rule.

Rehearing Denied in Ziegler: I confess I lost interest in the United States v. Ziegler case after the panel changed course and reversed its holding on the reasonable expectation of privacy in computers in the private-sector workplace. Decisions applying the Fourth Amendment to computers seem to be falling out of the trees these days, and the panel's second ruling on third-party consent was pretty fact-bound. However, it turns out that a bunch of Ninth Circuit Judges were still paying very close attention to the case. Check out the opinion dissenting from rehearing en banc by Willie Fletcher joined by Pregerson, Reinhardt, Kozinski, Hawkins, Thomas, McKeown, Wardlaw, Fisher, Paez, and Berzon, a.k.a. "the Libs + The Easy Rider." Judge Kozinski also filed a very heated separate dissent (albeit one that misspells "rehearing" in the title).

Hat tip: Above the Law.

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Has Cost-Benefit Analysis Worked?

Many economists have long advocated the use of cost-benefit analysis and other economic tools to improve regulatory decision-making and cost-effectiveness. Some government agencies have adopted such measures. Have they worked? A new paper co-authored by Robert Hahn, one of the more prominent cost-benefit advocates, suggests the results have been mixed and recommends additional reforms. Here's the abstract:

In response to the increasing impact of regulation, several governments have introduced economic analysis as a way of trying to improve regulatory policy. This paper provides a comprehensive assessment of government-supported economic analysis of regulation. We find that there is growing interest in the use of economic tools, such as benefit-cost analysis; however, the quality of analysis in the U.S. and European Union frequently fails to meet widely accepted guidelines. Furthermore, the relationship between analysis and policy decisions is tenuous. To address this situation, we recommend pursuing an agenda that allows economics to play a more central role in regulatory decision making. In addition, we suggest that prediction markets could help improve regulatory policy and improve measurement of the impact of regulation.

Legal Puzzle: Bob commits crime X, which has a statute of limitations of five years. Twenty years later — fifteen years after the statute of limitations has passed — a police officer finds out about the details of Bob's crime.

The officer realizes that Bob cannot be punished for the crime because the statute of limitations has long passed. The officer decides to visit Bob at his home anyway to ask Bob about the crime twenty years earlier. The officer tells Bob what he knows about what Bob did and asks Bob if it is true that he did it. Bob lies and says he didn't do it. Bob is then charged with intentionally lying to a police officer, which in our hypothetical jurisdiction is a felony. The government's proof: twenty earlier, Bob did in fact commit crime X.

Question: Is it constitutional for Bob to be charged and punished for lying to the officer about the crime he committed 20 years earlier?

Idiomatic Prepositional Phrases:

Something is written in a magazine, but on a Web site — and something is visible on a Web site but at a construction site. Things on paper are written in pencil, but on or with a typewriter. I'm sure there are lots of other similar examples. Oy. People who have to learn English as adults must find it nightmarish, in a Kafkaesque way.

Sexually Abusing A Child in the Name of Prosecuting Child Abuse:

I've mentioned that I've been reading up on the ritual sex abuse case of the 1980s. The victims included not only the wrongfully convicted, but the children who were fed false memories of abuse that never happened (and still to this day believe fantastic tales of ritual abuse), and others. The story that most affected me was of an eight year old girl subjected to a particular "expert" physician's physical "test" for sexual abuse. The physician told the girl she had been molested. She denied it. He then told the girl that to test her truthfulness, he was going to rub her anus with swabs, insert glass test tubes into her rectum, and take photographs of her genitals. Frightened and embarassed, she cried and begged not to be examined, but he insisted. He then once again insisted she had been abused. Years later, she remembered this as "the worst thing that ever happened to me." (Nathan & Snedeker, Satan's Silence 188)

The girl almost certainly wasn't sexually abused by the defendant, but she was by the physician retained by the prosecutor.

The Procedural Errors of Warshak v. United States: In this post on Warshak, I want to address why I think the case was obviously wrongly decided as a procedural matter. The court simply had no business trying to imagine all the ways the statute might be applied and resolving the constitutionality of all of those hypothetical applications. No court has ever done that before, and it's a dramatic break with decades of Fourth Amendment practice that the Supreme Court long ago foreclosed. Not only that, as I have argued in this 2004 law article, it's a reckless practice as a matter of policy: courts simply lack the institutional ability to enact entire surveilance regimes all at once, and any effort to do so is bound to create major headaches (as this one will, for reasons I'll get to in a future post).

  Let's start with some background about how Fourth Amendment law is made. The basic starting point of Fouth Amendment decisionmaking is that it is based on concrete facts: a search or seizure occurs and then its legality is challenged, either pursuant to a civil action or a motion to suppress. The court holds a hearing, figures out exactly what happened, and then applies the Fourth Amendment to the facts as found.

  This does not mean that prospective injunctive relief does not exist in Fourth Amendment law; but it does mean it is rare and its scope is very limited. Courts consider injunctive relief for Fourth Amendment violations when the government has an ongoing program: For example, the police might have enacted a new program putting up a particular kind of road block, or a school might have a policy requiring drug testing of public school students. In these cases, however, the scope of the injunctive relief is always very limited: the court considers whether the recurring known facts as they exist render the government conduct constitutional or unconstitutional. The court's role is limited to giving the existing program the Constitutional thumbs-up or thumbs-down.

  The Warshak court took a radically different approach. According to Judge Martin, courts can rule on facial challenges to statutes that regulate searches and seizures. In this setting, courts have the power to survey all of the possible applications of the statute and determine which ones will be constitutional and which ones won't be; the court can then draft the appropriate injunction to ensure the government oly acts constitutionality in the types of cases potentially covered by the statute. The Court drew this power from two cases: Berger v. New York, 388 U.S. 41 (1967), which considered a facial challenge to a New York wiretapping statute, and Ayotte v. Planned Parenthood, 546 U.S. 320 (2006), the recent abortion case authorizing lower courts to craft injunctive relief for the use of a challenged abortion statute to a set of unconstitutional applications of the statute.

  But this is pretty clearly incorrect. It is true that the Supreme Court did once entertain a facial Fourth Amendment challenge to a statute, in Berger. (There were very unusual circumstances, in case you're interested: Congress was considering the wiretapping legislation ultimately enacted as Title III, and the Justices wanted to and did get their 2 cents in about what it would say. ) However, the Court quickly shut the door on facial Fourth Amendment challeges just a year later in Sibron v. New York, 392 U.S. 40 (1968).

To read the rest of this post, click here.

To return to the truncated post, click here.

Sibron was a companion case to Terry v. Ohio, and it applied the Terry framework to two stops and frisks in New York state. Unlike the Ohio stops and frisks in Terry, however, the stops and frisks in Sibron were made pursuant to the terms of New York's stop and frisk statute, Section 180-a. Section 180-a authorized the police to "stop" individuals, "demand" explanations from them and "search" them for "dangerous weapons" if "reasonable suspicion" existed. The lawyers on both side of Sibron read Berger, saw that the Court approached the New York wiretapping statute as a facial challenge, and wrote their briefs on the assumption that New York's stop and frisk statute would be evaluated facially as well.

In an opinion by Chief Justice Warren, the Court concluded that it was improper to subject a statute to facial Fourth Amendment challenge outside the fairly specific context of a statute authorizing the issuance of search warrants. Here's the Court's anaylysis:

The parties on both sides of these two cases have urged that the principal issue before us is the constitutionality of 180-a "on its face." We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of 180-a next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case. In this respect it is quite different from the question of the adequacy of the procedural safeguards written into a statute which purports to authorize the issuance of search warrants in certain circumstances. See Berger v. New York, 388 U.S. 41 (1967). No search required to be made under a warrant is valid if the procedure for the issuance of the warrant is inadequate to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope, which lies at the heart of the Fourth Amendment. E. g., Aguilar v. Texas, 378 U.S. 108 (1964); Giordenello v. United States, 357 U.S. 480 (1958). This Court held last Term in Berger v. New York, supra, that N. Y. Code Crim Proc. 813-a, which established a procedure for the issuance of search warrants to permit electronic eavesdropping, failed to embody the safeguards demanded by the Fourth and Fourteenth Amendments.

Section 180-a, unlike 813-a, deals with the substantive validity of certain types of seizures and searches without warrants. It purports to authorize police officers to "stop" people, "demand" explanations of them and "search [them] for dangerous weapon[s]" in certain circumstances upon "reasonable suspicion" that they are engaged in criminal activity and that they represent a danger to the policeman. The operative categories of 180-a are not the categories of the Fourth Amendment, and they are susceptible of a wide variety of interpretations. New York is, of course, free to develop its own law of search and seizure to meet the needs of local law enforcement, see Ker v. California, 374 U.S. 23, 34 (1963), and in the process it may call the standards it employs by any names it may choose. It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct. The question in this Court upon review of a state-approved search or seizure "is not whether the search [or seizure] was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one." Cooper v. California, 386 U.S. 58, 61 (1967).

Accordingly, we make no pronouncement on the facial constitutionality of 180-a. The constitutional point with respect to a statute of this peculiar sort, as the Court of Appeals of New York recognized, is "not so much . . . the language employed as . . . the conduct it authorizes." People v. Peters, 18 N. Y. 2d 238, 245, 219 N. E. 2d 595, 599, 273 N. Y. S. 2d 217, 222 (1966). We have held today in Terry v. Ohio, ante, p. 1, that police conduct of the sort with which 180-a deals must be judged under the Reasonable Search and Seizure Clause of the Fourth Amendment. The inquiry under that clause may differ sharply from the inquiry set up by the categories of 180-a. Our constitutional inquiry would not be furthered here by an attempt to pronounce judgment on the words of the statute. We must confine our review instead to the reasonableness of the searches and seizures which underlie these two convictions.

Sibron, 392 U.S. at 59-62.

  So how does Judge Martin deal with Sibron, which seems to limit Berger-like facial challenges to testing "the procedure for the issuance of the warrant . . . to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope" — obviously not something implicated by this case?

  Well, he doesn't. Judge Martin doesn't discuss Sibron. The case is not even cited. Instead, Judge Martin sees Berger as standing for the broad proposition that facial challenges are permitted "where the statute, on its face, endorses procedures to authorize a search that clearly do not comport with the Fourth Amendment." But isn't that broad reading pretty clearly foreclosed by Sibron?

  Judge Martin's opinion also ignores the Supreme Court's recent statements discouraging and narrowing the availability of facial challenges in Sabri v. United States, 541 U.S. 600 (2004). In Sabri, a criminal defendant brought a facial challenge to a bribery statute alleging that the statute lacked the needed connection to interstate commerce. The opinion of the Court included a discussion of when facial challenges are permitted; although the reasoning is general, I think it is nonetheless instructive

We add an afterword on Sabri’s technique for challenging his indictment by facial attack on the underlying statute, and begin by recalling that facial challenges are best when infrequent. See, e.g., United States v. Raines, 362 U.S. 17, 22 (1960) (laws should not be invalidated by “reference to hypothetical cases”); Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219—220 (1912) (same). Although passing on the validity of a law wholesale may be efficient in the abstract, any gain is often offset by losing the lessons taught by the particular, to which common law method normally looks. Facial adjudication carries too much promise of “premature interpretatio[n] of statutes” on the basis of factually bare-bones records. Raines, supra, at 22. . . .

Facial challenges of this sort are especially to be discouraged. Not only do they invite judgments on fact-poor records, but they entail a further departure from the norms of adjudication in federal courts: overbreadth challenges call for relaxing familiar requirements of standing, to allow a determination that the law would be unconstitutionally applied to different parties and different circumstances from those at hand. See, e.g., Chicago v. Morales, 527 U.S. 41, 55—56, n. 22 (1999) (plurality opinion). Accordingly, we have recognized the validity of facial attacks alleging overbreadth (though not necessarily using that term) in relatively few settings, and, generally, on the strength of specific reasons weighty enough to overcome our well-founded reticence. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601 (1973) (free speech); Aptheker v. Secretary of State, 378 U.S. 500 (1964) (right to travel); Stenberg v. Carhart, 530 U.S. 914, 938—946 (2000) (abortion); City of Boerne v. Flores, 521 U.S. 507, 532—535 (1997) (legislation under §5 of the Fourteenth Amendment). See generally Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1351 (2000) (emphasizing role of various doctrinal tests in determining viability of facial attack); Monaghan, Overbreadth, 1981 S. Ct. Rev. 1, 24 (observing that overbreadth is a function of substantive First Amendment law). Outside these limited settings, and absent a good reason, we do not extend an invitation to bring overbreadth claims.

Like Sibron, Sabri is not mentioned in the Warshak opinion.

After determining that Berger permits a facial challenge to a statute on Fourth Amendment grounds, Judge Martin next invokes Ayotte v. Planned Parenthood for the view that a court can craft a narrow injunctive remedy focused on unconstitutional applications of the challenged statute. Ayotte involved abortion, one of the few areas in which facial challenges are common. But if you read Ayotte, it expressly counsels against doing what the panel did in Warshak: the Court warns that courts could not "rewrite" statutes to "salvage" them. According to Ayotte, partial invalidation of statutes should be limited to reinforcing clear and established constitutional lines in ways so as to reconstruct legislative intent with the unconstitutional applications removed. Justice O'Connor explains:

[M]indful that our constitutional mandate and institutional competence are limited, we restrain ourselves from “rewrit[ing] state law to conform it to constitutional requirements” even as we strive to salvage it. Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 397 (1988). Our ability to devise a judicial remedy that does not entail quintessentially legislative work often depends on how clearly we have already articulated the background constitutional rules at issue and how easily we can articulate the remedy. In United States v. Grace, supra, at 180—183, for example, we crafted a narrow remedy much like the one we contemplate today, striking down a statute banning expressive displays only as it applied to public sidewalks near the Supreme Court but not as it applied to the Supreme Court Building itself.

We later explained that the remedy in Grace was a “relatively simple matter” because we had previously distinguished between sidewalks and buildings in our First Amendment jurisprudence. United States v. Treasury Employees, 513 U.S. 454, 479, n. 26 (1995). But making distinctions in a murky constitutional context, or where line-drawing is inherently complex, may call for a “far more serious invasion of the legislative domain” than we ought to undertake. Ibid.

This is of course exactly the case of e-mail privacy. I spend a full 50 pages in my 2006 Computer Crime Law casebook pondering the many possible arguments for different ways the Fourth Amendment might apply to e-mail (from pages 394-445). My ultimate conclusion is that the law is completely unknown and that a remarkable range of outcomes are possible based on existing authorities. This drives students nuts; as you might imagine, they want some answers. But I can't give them certainty that doesn't exist.

What does Judge Martin make of the passage in Ayotte warning judges away from offering comprehensive rules when the law is murky or inherently complex? We don't know; he does not mention it. Judge Martin interprets Ayotte as bestowing upon him broad remedial powers, but he does not address the limitations on those powers found in the opinion itself.

In sum, the Warshak court gave itself powers that Supreme Court precedent clearly forecloses. Courts simply lack the power to decide entire fields of Fourth Amendment law based on imagined facts, and the Warshak court lacked the power to do so here. Warshak has already brought a civil suit challenging the two accesses of his e-mail accounts that occurred in 2005, and any judicial pronouncement of how the Fourth Amendment applies to compelling e-mail should be limited to the facts of the searches that occurred. )

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Would This Be (Mild) Plagiarism If a Student Wrote It in a Paper?

I argued below that Reuters erred in suggesting that certain material in Brentwood Academy came from "the court's opinion," when it actually came from Justice Stevens' Part II-A, which was joined by four Justices but repudiated by five. But let me focus on something else instead; here's a paragraph from the Reuters story:

Stevens said the association's limited regulation of recruiting posed no significant free-speech concerns, given that member schools remain free to send brochures, post billboards or otherwise advertise their athletic programs....

Here's a corresponding paragraph from Justice Stevens' opinion:

Given that TSSAA member schools remain free to send brochures, post billboards, and otherwise advertise their athletic programs, TSSAA's limited regulation of recruiting conduct poses no significant First Amendment concerns.

My guess is that this would probably violate normal plagiarism guidelines for students or scholars. When whole phrases are copied with nearly no change -- compare especially "given that member schools remain free to send brochures, post billboards or otherwise advertise their athletic programs" with "Given that TSSAA member schools remain free to send brochures, post billboards, and otherwise advertise their athletic programs" -- such copying should be noted with quotation marks, rather than presented as a paraphrase.

The violation is not nearly as serious as it would be if the original author's name was omitted, and the article presented the idea as the article author's invention. But -- and please correct me if I'm wrong -- I think it still would be a violation, since one must expressly note, using quotation marks, the use of another's literal words.

Now I'm not sure that what Reuters did is particularly bad for newspaper or wire service prose. My guess is that Reuters decided to omit the quotes here because it had expressly quoted Stevens in the surrounding paragraphs. The thought, I suspect, was that having too many quotation marks would look distracting to the reader.

But students should be expressly warned, I think, that even if this fine for newspapers, they can't follow the same approach in their papers. The danger is that seeing such locutions -- where the original author is identified, but the fact that his words are being literally used is not -- in many authoritative places may mislead students into adopting norms that will serve them ill when they're in school.

Prediction of Likely Newspaper Error Comes True:

In the post below, I wrote:

6. Finally, a warning: The liberals' general undue influence discussion — as opposed to the reference to the risk of undue influence as a justification that sufficed when the government was organizing a voluntary sports league — appears in what is otherwise the principal opinion for the Court. I suspect that some people — perhaps including some reporters — will misread the discussion as a majority view, or at least a plurality view (which is to say the view taken by fewer than all Justices, but still the view that commanded the most adherence on the Court). Always remember that it is a minority view, and the majority view is that expressed in Justice Kennedy's opinion.

I just noticed that the L.A. Times report on the case — which I should stress had to be prepared on very short notice, a situation that naturally leads even excellent journalists to occasionally err — says, among other things:

The school, its headmaster and the coach argued in federal court that they had a free-speech right to contact students who had already expressed an interest in transferring. They won in two lower courts, which ruled the suspensions violated their 1st Amendment rights.

The Supreme Court disagreed, noting the private school had been judged to have violated the rules of the state athletic association, of which it was a member. The "anti-recruiting rule strikes nowhere near the heart of the 1st Amendment," Stevens said.

He cited earlier rulings as a precedent that said lawyers would be disciplined for some actions to recruit clients. "In our view, the dangers of undue influence and overreaching that exist when a lawyer chases an ambulance are also present when a high school coach contacts an eighth-grader," he said.

Both of the Stevens quotes come from his reasoning in Part II-A for four Justices, not from a majority opinion. The majority of Justices specifically rejected the legal analogy between lawyer speech — which the government may regulate even as sovereign, rather than as controller of a voluntary association — and speech by coaches at private schools. And the majority of the Justices did not endorse the view that the "anti-recruiting rule strikes nowhere near the heart of the 1st Amendment" in the sense Justice Stevens meant, which is that they involved mere "direct, personalized communication in a coercive setting." (Maybe they would in a different case endorse the general view that recruiting speech just isn't that important for First Amendment purposes, but they didn't endorse it here.)

Most of the story is good. But it seems to me a mistake to frame these quotes as coming from "The Supreme Court" when they came from what a portion of the opinion that was only endorsed by a minority of the Justices.

UPDATE: Reuters makes a similar error. It begins correctly in two paragraphs generally summarizing the result, and correctly writes in the next paragraph, "Justice John Paul Stevens said in the court's opinion that the high school had voluntarily decided to join the association." But the following two paragraphs, and the closing paragraph, all quote or paraphrase the four-Justice opinion, not the opinion of "a unanimous U.S. Supreme Court" or even the Court's majority:

"The anti-recruiting rule strikes nowhere near the heart of the First Amendment," he wrote. "(The association) has not banned the dissemination of truthful information relating to sports. It has only prevented its member schools from recruiting individual middle school students."

Stevens said the association's limited regulation of recruiting posed no significant free-speech concerns, given that member schools remain free to send brochures, post billboards or otherwise advertise their athletic programs.

[Two paragraphs describing the association's arguments and the facts omitted. -EV]

"In our view," Stevens wrote, "the dangers of undue influence and overreaching that exist when a lawyer chases an ambulance are also present when a high school coach contacts an eighth grader."

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Prediction of Likely Newspaper Error Comes True:
Conservative vs. Liberal Justices on Speech and Undue Influence:

Conservative vs. Liberal Justices on Speech and Undue Influence:

Today's Tennessee Secondary School Athletic Ass'n v. Brentwood contains a fascinating split between the conservative and the liberal Justices (an oversimplification, I realize, but one that's useful here) on when a class of speech may be restricted because of "the dangers of undue influence and overreaching that exist" in this class.

1. First, let's briefly note (and then largely set aside) the result and the 8-1 reasoning that produces it: The Tennessee Secondary School Athletic Ass'n, the Court held, may restrict certain recruiting-related speech of its member schools, because "[the schools] made a voluntary decision to join TSSAA and to abide by its antirecruiting rule."

"This is not to say that TSSAA has unbounded authority to condition membership on the relinquishment of any and all constitutional rights"; "TSSAA can similarly impose only those conditions on [public-concern] speech that are necessary to managing an efficient and effective state-sponsored high school athletic league." But even if this speech is treated as public-concern speech, this necessity is present here because of the "common-sense conclusion that hard-sell tactics directed at middle school students could lead to exploitation, distort competition betweenhigh school teams, and foster an environment in which athletics are prized more highly than academics." Only Justice Thomas disagreed here, and would have upheld the TSSAA's actions because he would have concluded (contrary to the Court's past decision in the same case) that the TSSAA wasn't a government actor.

2. Now, to the liberal/conservative disagreement. Justice Stevens's opinion for himself plus Justices Souter, Ginsburg, and Breyer reasons — even independently of the "schools made a voluntary decision to abide by the rule" argument — that "there is a difference of constitutional dimension between rules prohibiting appeals to the public at large and rules prohibiting direct, personalized communication in a coercive setting." This difference can justify speech restrictions even when the government is acting as sovereign, and not just as organizer of a voluntary athletic league; if the liberals' view were accepted, then recruiting restrictions and the like would be upheld even if they were imposed on purely private schools in private associations.

Justice Stevens points in support to a commercial advertising case, Ohralik v. Ohio State Bar Ass'n (1978), which upheld a restriction on face-to-face attorney solicitation of business, on the grounds that such solicitation posed an especially grave risk of undue influence. The Court later made clear that this rule didn't apply to all face-to-face speech, including commercial advertising (a category that includes individual solicitation of business); Edenfield v. Fane (1993) declined to extend Ohralik to accountants, on the theory that they're not as persuasive as lawyers, and that their potential clients aren't as likely to be in trouble and underinformed as lawyers' potential clients. Still, Justice Stevens reasons,

[T]he dangers of undue influence and overreaching that exist when a lawyer chases an ambulance are also present when a high school coach contacts an eighth grader. After all, it is a heady thing for an eighth-grade student to be contacted directly by a coach ... and invited to join a high school sports team. In too many cases, the invitation will come accompanied with a suggestion, subtle or otherwise, that failure to accept will hurt the student’s chances to play high school sports and diminish the odds that she could continue on to college or (dream of dreams) professional sports. Cf. App. 119 ("I do feel that getting involved as soon as possible would definitely be to your advantage"). Such a potent entreaty, playing as it does on youthful hopes and fears, could well exert the kind of undue pressure that "disserve[s] theindividual and societal interest ... in facilitating 'informed and reliable decisionmaking.'" Ohralik.

Justice Kennedy, whom Chief Justice Roberts, Justice Scalia, and Justice Alito joined, and with whom Justice Thomas agreed on this, differed. Quoting Edenfield, Justice Kennedy concluded that "Ohralik's holding was narrow and depended upon certain 'unique features of in-person solicitation by lawyers' that were present in the circumstances of that case."

3. It seems to me that, under the Court's precedents, the conservatives are right and the liberals are wrong. Even if in-person individualized speech by coaches to prospective students is more like the lawyer-prospective-client speech in Ohralik rather than the accountant-prospective-client speech in Edenfield, this case involved a letter. And even as to lawyer advertising, the Court has expressly distinguished (in Shapero v. Kentucky Bar Ass'n (1988)) face-to-face speech from letters, holding that the latter may not be restricted on a "risk of undue influence" rationale:

In assessing the potential for overreaching and undue influence, the mode of communication makes all the difference. Our decision in Ohralik that a State could categorically ban all in-person solicitation turned on two factors. First was our characterization of face-to-face solicitation as "a practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud." Second, "unique ... difficulties" would frustrate any attempt at state regulation of in-person solicitation short of an absolute ban because such solicitation is "not visible or otherwise open to public scrutiny." Ohralik. See also ibid. ("[I]n-person solicitation would be virtually immune to effective oversight and regulation by the State or by the legal profession"). Targeted, direct-mail solicitation is distinguishable from the in-person solicitation in each respect.

This opinion was joined by Justice Stevens, though Justice Stevens's opinion in Brentwood doesn't discuss why Ohralik (lawyer's face-to-face solicitation) is more analogous than Shapero (lawyer's solicitation letter) to Brentwood (coach's solicitation letter).

(Note that Florida Star v. Went for It (1995) upheld a restriction on certain lawyer solicitation letters, but on special grounds that don't seem applicable here, and specifically declining to rely on an avoiding-undue-influence/coercion rationale. Note also that Justices Stevens, Souter, and Ginsburg joined Justice Kennedy in dissenting in this case, though Justices Scalia, Thomas, and Breyer were in the majority.)

4. More broadly, it seems to me that the liberals' view, if adopted, would have pointed towards considerably broader restrictions on targeted speech more generally. This speech was not itself terribly coercive. Though it would be read by minors, the decisions about it would be made by parents. The coach's argument, which is that deciding on a school early enough that one can participate in training earlier, provides useful information to parents — self-interested on the school's part, to be sure, but potentially also in the student's interest. Because the letter is in writing, a total prophylactic ban on all pre-enrollment recruiting letters seems broader than necessary to prevent real coercion.

A logic that finds enough risk of coercion here to justify a broad ban on pre-enrollment recruiting letters strikes me as easily extensible to a wide range of other speech, especially one-to-one but also the very "appeals to the public at large" that Justice Stevens purports to distinguish. Risk of coercion and undue influence is a matter of degree. One can often identify some such risk in any communication. The question is how high the Court sets the threshold, both as to restricting allegedly coercive speech and as to restricting whole genres of communication as a prophylactic measure. The logic of Justice Stevens' opinion would have, in my view, set the threshold quite low.

5. Note also that all the Justices cited commercial advertising precedents without discussed whether they applied here. After all, In re Primus, a companion case to Ohralik, reached the exact opposite result as to individual solicitations (albeit by letter rather than in-person) by cause lawyers whom the client wouldn't have to pay. Part of the Court's rationale was that one case involved commercial advertising and the other didn't:

At bottom, the case against [Primus] rests on the proposition that a State may regulate in a prophylactic fashion all solicitation activities of lawyers because there may be some potential for overreaching, conflict of interest, or other substantive evils whenever a lawyer gives unsolicited advice and communicates an offer of representation to a layman. Under certain circumstances, that approach is appropriate in the case of speech that simply "propose[s] a commercial transaction." See Ohralik. In the context of political expression and association, however, a State must regulate with significantly greater precision."

It may well be that a private school's solicitation to would-be students — whether ones who will have to pay some money, or ones who will be given a full scholarship but will offer the school their athletic services — should be treated as commercial advertising (a category that the Court has somewhat imprecisely called "commercial speech," but that it has generally, albeit not always, defined as speech that proposes a commercial transaction). But it's too bad the Justices didn't explain precisely why this is so. Among other things, this silence might lead some readers to treat Justice Stevens' opinion as supporting greater restrictions on individually targeted speech generally, rather than solely on individually targeted commercial advertising.

6. Finally, a warning: The liberals' general undue influence discussion -- as opposed to the reference to the risk of undue influence as a justification that sufficed when the government was organizing a voluntary sports league -- appears in what is otherwise the principal opinion for the Court. I suspect that some people — perhaps including some reporters — will misread the discussion as a majority view, or at least a plurality view (which is to say the view taken by fewer than all Justices, but still the view that commanded the most adherence on the Court). Always remember that it is a minority view, and the majority view is that expressed in Justice Kennedy's opinion.

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Supreme Court Decides Guidelines Case: The Supreme Court has handed down Rita v. United States, an important case on how federal courts determine and review criminal sentences imposed under the federal Sentencing Guidlines.

  The Court's conclusion: It is permissible for appellate courts to apply a non-binding presumption of reasonableness to within-guidelines sentences. Both the Sentencing Commisson and district courts are trying to do the same basic thing, the Court reasons, so if they both agreed on a sentence — the Commission on a range, the judge on a sentence within the range — then an appellate court can safely presume that the resulting sentence was reasonable. This doesn't violate the 6th Amendment, the Court holds, because it should be understood just as a sensible presumption, not a binding conclusion.

  Justice Breyer wrote the majority opinion, joined in full by Roberts, Stevens, Kennedy, Ginburg and Alito, and joined in part by Scalia and Thomas. Stevens wrote a concurrence mostly joined by Ginsburg, and Scalia wrote a concurrence joined by Thomas. Justice Souter dissented.

  My very quick skim of the opinion leaves me with the impression that the Justices felt it was time to stop leaving open the guessing game of Blakely/Booker and to start imposing some clear guidance for courts to follow. (The hand of Chief Justice Roberts, perhaps?) The result ends up not very far from what we had under the Guidelines regime — Justice Breyer wins out in the end, it seems — but it tries to impose some certainty and uniformity on the chaos threatened by the Apprendi/Blakely revolution.

  Over at Sentencing Law & Policy, Doug Berman suggests that the majority opinion will only create more confusion in the law. I'm not the sentencing expert that Doug is, but my read on the opinion is different. As I see it, the Court permits a presumption but does not mandate it, and the presumption cannot be absolute. The Court effectively approves one method of reviewing sentences (and shows how it would be done in the Rita case itself) while not foreclosing other approaches. Presumably this gives lower courts the chance to decide if they want to embrace the Rita-endorsed approach or something else; if other courts coalesce around another approach, the Court can grant cert to review that alternative method down the road. That's my sense, at least; I'll be interested to hear what others think about this.

New books and secret blogs: some results

A few days ago, on MarginalRevolution.com, I offered access to a secret blog (over forty posts) to anyone who would pre-order my forthcoming book Discover Your Inner Economist: Use Incentives to Fall in Love, Survive Your Next Meeting, and Motivate Your Dentist, due out August 2 from Dutton. The deal, which still stands for all, is that the reader need only write an email to [email protected] and tell me they pre-ordered the book. My underlying hypothesis was that blog readers are not always book readers, so why not package a blog with a book? I was surprised by the results:

1. The orders drove the book up to #220 on Amazon.

2. So far no one has leaked the site address, even though hundreds of people (many of them bloggers) have it.

3. Most people sent in proof of purchase, and were keen to have me look at it, even though I did not ask for it.

4. People asked very earnestly whether it was permissible to show the secret blog to their spouse (it is).

5. Some people wrote me long emails, with complex economic arguments, as to why I should give them the blog for free. But they weren't willing to simply lie and get the site address.

6. Some people wrote me long emails with instructions and advice as to how to keep the blog secret for a long time, and possible dangers I might face in maintaining that secrecy.

We'll see how this progresses. No, we can't fund the nuclear umbrella this way, but I am heartened by the honesty and cooperativeness of the blog-reading community.

The Legal Rulings in Warshak v. United States: In my last post, I explained the facts of Warshak v. United States, the Sixth Circuit's new decision that largely rewrites the law of e-mail privacy. In this post, I want to explain the opinion's legal rulings.

  Two caveats before I begin. First, I'll mostly (although not entirely) save the commentary for later. The Warshak opinion announces five or six novel and far-reaching propositions of law, and I think it's important for us to start with an understanding of what those rulings are before we get to whether the court had a solid basis or announcing them. Second, I should emphasize that there may be room for disagreement as to the meaning of some of the passages. The opinion is quite complex and not exactly a model of clarity, and I struggled over some of the passages. Given this, I hope those who disagree with my interpretations will politely explain why in the comment thread.

  On to the opinion, starting with procedural issues and then moving on to the Fourth Amendment rulings.

The Procedural Rulings
  Let's get the procedural, non-Fourth Amendment matters out of the way first. These parts are less high-profile than the substantive Fourth Amendment issues, but they're the rulings that let the court get to the Fourth Amendment issues so we need to appreciate them to understand the case. In particular, there are two key procedural rulings:

  (1) When a person challenges a statute under the Fourth Amendment, the court has the power to consider all of the possible applications of the challenged statute, determine which ones violate the Fourth Amendment, and then enjoin the ones that would violate the Fourth Amendment while allowing the statute to be used in ways that the court concludes would be constitutional.

  According to the court, individuals can bring facial challenges to statutes under the Fourth Amendment "where the statute, on its face, endorses procedures to authorize a search that clearly do not comport with the Fourth Amendment." However, courts ruling on such facial challenges do not need to uphold or strike down statutes in their entirety. Rather, courts can impose a "narrow" type of facial invalidation in which the court can determine which applications of the statute would be constitutional and which would be unconstitutional. The court can then prohibit only the unconstitutional applications of the statute and permit the rest.

  (2) The plaintiff in this case has standing and his claims are ripe to challenge future acts under the SCA, and the balance of factors favors an injunction here.

  Warshak has standing to challenge the government's future conduct because the government has obtained his e-mails twice before and might do so again because the statute permits the government's action. Although Warshak has been indicted and the case has moved on to a different stage, it is possible that the government might try to get his e-mail again using the same technique it used in 2005. His claims are not excessively hypothetical because it seems likely that future efforts to obtain Warshaks e-mail probably would be pretty similar to the two past ones. Further, the government wants to act in ways that violate the Fourth Amendment, which is contrary to the public interest and favors issuing the injunction.

The Fourth Amendment Rulings
On to the Fourth Amendment rulings. They are:

  (1) The threshold that the Fourth Amendment requires when compelling evidence with a subpoena or similar order depends on who has privacy rights and whether the persons who have privacy rights have been given prior notice of the government's action.

  The court envisions three different categories of privacy protection for orders to compel:

  First, when the government is seeking evidence with a subpoena and no third party has a reasonable expectation of privacy in the information, the Fourth Amendment standard is the traditional reasonableness standard.

  Second, when the government is seeking evidence with a subpoena and a third party has a reasonable expectation of privacy in the information but is not given prior notice, then the Fourth Amendment requires probable cause.

  Third, when the government is seeking evidence with a subpoena and a third party has a reasonable expectation of privacy in the information but is given prior notice allowing them to challenge the subpoena, then the Fourth Amendment standard drops back down to traditional reasonableness. In other words, the Fourth Amendment requires probable cause or notice, but the presence of notice drops the required legal threshold down to reasonableness.

  (2) E-mail users always have a reasonable expectation of privacy against the outside world in their e-mail.

  The contents of stored e-mail held by an ISP are like the contents of landline telephone calls, sealed letters, or sealed packages. The fact that ISPs have the technical ability to access e-mail doesn't matter, any more than does the fact that the Post Office has the technical ability to break open your envelopes and read your postal mail. An ISP might access subscriber and non-content information associated with an e-mail, but the ISP has not been granted access to the e-mail's contents and there is a "societal expectation" that they normally will not access contents.

  Notably, however, a user's reasonable expectation of privacy in e-mail is not the same as a person's reasonable expectation of privacy in physical spaces. Rather, it is broader, because computer accounts are different from physical spaces. In the physical world, a person's reasonable expectation of privacy is contingent on his relationship to the place. Thus, Katz had a reasonable expectation of privacy in the phone booth only temporarily when he was making a call; a hotel guest loses his reasonable expectation of privacy after checkout time; and a burglar has no reasonable expectation of privacy in a house he has burglarized. Fourth Amendment rights in physical spaces depend on whether the person has a legitimate relationship with the space sufficient to establish constitutional proection.

  According to the court, these concepts do not apply to computer accounts. The court reasons that these Fourth Amendment rules in physical space exist because physical space can be used by multiple people. For example, a hotel guest loses a reasonable expectation of privacy at checkout time because the next guest is coming and soon will be putting his stuff in the room. But e-mail is different: e-mail accounts are not ordinarilty used by multiple people. If you stop paying the bill for your ISP account, you wouldn't expect some other Internet user to gain access to your account and start looking through your e-mail! As a result, you maintain a reasonable expectation of privacy in your account even if you signed up for the account fraudulently or you decided to abandon the account.

  Indeed, even a hacker likely has a reasonable expectation of privacy in the contents of e-mails in an account he has hacked. A thief does not have a reasonable expectation of privacy in the contents of a computer he has stolen. But if a hacker breaks into an account and puts his private information there, the analogy to a stolen physical computer is unhelpful because the hacker didn't actually "steal" the e-mail account or the server that hosts it.

  (3) A clear statement by an ISP in Terms of Service that it regularly accesses e-mail content combined with a) evidence that users are aware of that policy and b) evidence that the ISP utilizes the policy does not eliminate Fourth Amendment protection altogether, but does eliminate a reasonable expectation of privacy "vis a vis the provider," allowing a lower subpoena standard to be used to compel evidence from the ISP.

  According to the court, there are two kinds of reasonable expectations of privacy: those generally and those vis-a-vis ISPs. (Editorial note: This is wrong as a matter of basic Fourth Amendment law; there is no such thing as reasonable expectations of privacy vis a vis different people or entities. But I promised not to talk about the merits here, so I'll get to that in a future post.) In some circumstances, ISP monitoring can eliminate the user's reasonable expectation of privacy vis a vis the ISP although not vis a vis the outside world. The key line is between "total access" and "less in-depth screening"; "total access" eliminates the REP with respect to the provider but "less in-depth screening" does not.

  The court elaborates on the line and offers the following constitutional test: to establish that a user has waived a reasonable expectation of privacy in e-mail vis a vis the provider, the goverment must show "based on specific facts," "that the ISP or other intermediary clearly established and utilized the right to inspect, monitor, or audit the contents, or otherwise had content revealed to it." If the government can establish this, then the user's reasonable expectation of privacy "vis a vis the provider" is waived, and the Fourth Amendment is now satisfied if the subpoena or order to compel is obtained under a reasonableness standard rather than probable cause.

  (4) Computer scanning of e-mail for key words, types of images or "similar indicia of wrongdoing" in a way that does not disclose contents to an actual person does not invade any Fourth Amendment rights.

  According to the court, such computer-driven screening is like post office screening of packages for evidence of drugs or explosives. Because such screening does not trigger the Fourth Amendment — on a Caballes dog-sniff rationale, I assume — digital screening does not do so either. (Presumably this means that the any NSA monitoring of e-mail for keywords or the use of FBI devices installed at ISPs to scan e-mail and attachments for digital images of child pornography do not implicate the Fourth Amendment. However, the court does not elaborate on this point.)

  (5) When e-mail is obtained pursuant to a search warrant, the particularity requirement requires that warrants must "target e-mails that could reasonably be believed to have some connection to its specific investigation."

  When the government has probable cause to believe evidence of crime or contraband is in an e-mail account, it cannot request the entire e-mail account. The warrant has to be selective and only ask for specific documents or categories of documents. (Given that ISP employees execute warrants for e-mail accounts, rather than police officers, I don't know how this is supposed to work. Perhaps cops need to actually come to the ISP and screen the e-mails onsite or else the police must start outsourcing minimization to the ISP employees? Or can the ISP send the entire contents to the FBI, which will then execute the search on the account based on the particular warrant much as hey would a PC? More on this later, too.) The court suggests that magistrates should consider limiting e-mail warrants based on the date of the e-mail, the "to" and "from" adress, or keywords, but does not impose a requirement of that.

* * * *
  So there you have it. As you can see, the court sure managed to pack in a lot of law into a 20-page opinion. I don't think I'm exagerrating to say it's an entirely new regime for e-mail privacy. In my next post, I'll finally start critiquing the opinion on the merits. I plan to start by critiquing the court's procedural rulings, some of which struck me as pretty obviously wrong and contrary to fairly clear Supreme Court precedent that the panel opinion didn't cite. Stay tuned....

All Related Posts (on one page) | Some Related Posts:

More on Breaking into Appellate Law, from a Sole Practitioner Appellate Lawyer Friend of Mine:

This is from Bruce Adelstein, who worked for a few years for Horvitz & Levy in L.A., and is now out on his own. He's a very smart guy, a smart lawyer and also someone smart enough to have snapped up the appellatelaw.com domain when the snapping was good. In any case, here's his report:

There is the high-end Supreme Court practice. I don't know much about this, but the people there usually went to great schools, clerked for the USSC, and often went through the SG's office.

There are appellate departments at large national firms. I think this work is pretty competive and the work is often limited. A lot of big-firm partners are more than competent and very comfortable doing their own appeals. For this reason, big firms have to attract appeals from outside the firm.

The problem is that an appellee or respondent is probably satisfied with their current counsel and is not likely to look to other firms. An appellant might be dissatisfied with its trial counsel. But if the counsel is at another big firm, the firm probably has some pretty capable appellate lawyers. And if the client did not hire a big firm in the first place, it might be that the client does not want to pay big-firm rates. Some big firms have very successful appellate departments, but many have very small appellate departments that don't do much beyond assisting other lawyers in the firm with appeals.

(Click here to read the rest.)

There are appellate firms (Horvitz & Levy and Greines Martin in LA — I don't know about elsewhere). I spent a few years at H&L and Dana [Bruce's wife] was at Greines for 8 years ....

But once you get out of the very top end of litigation, there are lots of trial lawyers who need appellate lawyers. That's where most of my appeals come from.

A lot of trial lawyers like doing litigation. They like the fight, taking depos, arguing to juries, sending nasty letters off to the other side, etc. They are often quite good trial lawyers. But they have minimal interest ... in legal research, analyzing complex legal issues, [effective appellate] writing, etc. The last thing they want to do is to sit down for weeks on end, pore over an appellate record, do lots of legal research, and write a 60-page brief. They are more than happy to pass the appeal along to competent appellate counsel.

These types of cases are typically not as huge as the cases that large firms handle. However, from my perspective, that's a plus. The appellate record is managable, and that makes it a lot easier to handle.

Most importantly, interesting appellate issues are just as likely to come up in "average" cases as in the much larger cases that large firms handle. A few examples from my cases:

- The First Amendment / harassment issue in Krell v. Grey (the LAUSD case that tried to follow Avis [v. Aguilar], but that I successfully petitioned for rehearing on) is a good example.

- One of my first appeals at Horvitz & Levy involved an automobile accident. The facts were quite unpleasant, but the legal issue was a fascinating spoliation of evidence issue.

- I had a marital dissolution case where I had to analyze the legal and economic underpinnings of spousal fiduciary duties, and I had to differentiate them from other types of fiduciary duties. I got into a lot of legal theory as to what fiduciary duties where and why we have them. I obtained a reversal, and the legislature later amended the statute to limit the scope of the opinion in my case.

None of these were big-firm cases, but all of them raised legal issues that someone interested in legal theory would love. And that's what I love about appeals.

I sometimes say appellate law is about 25% of the way to academia. I get to research, think about, and write about legal issues. Many are easy, but — as noted above — some raise interesting and challenging issues. But at the same time, I am dealing with real clients with real legal problems.

The dollar amounts in my appeals typically range from about $50,000 at the low end to maybe $5 or $6 million at the high end. I just won an appeal (as the respondent — the state court term for appellee) in a $600 wage and hour case with a $35,000 attorney's fee award. It was quite easy — almost like an opposition to a motion. I think this is my smallest case (involving a money judgment). But at the same time, I am representing the respondent / plaintiff in a $4.6 million breach of fiduciary claim involving a complex transaction where a general partner ripped off a bunch of limited partners. This is one of my larger appeals.

I'm not sure of the best way to get into this type of appellate law. It might be to go to the best litigation firm possible for a few years, do litigation, and try to do as many appeals as possible. (That's what I did.)

Another option is to go to an appellate firm like Horvitz or Greines for a few years. (That's what I did after a big firm.)

A lot of appellate lawyers I know spent several years as a research attorney at the state Court of Appeal. These are permanent positions, and — like a one-year federal clerkship — they give great insights as to how appeals are actually decided.

A lot of appellate lawyers also spent time working for the state attorney general's office doing criminal (and sometimes civil) appeals.

Once you have a good grounding, start your own firm or join up with another appellate lawyer.

This sounds scary, but there is a safety net for appellate lawyers just starting out. Most jurisdictions appoint appellate lawyers for indigent criminal appeals. These appeals do not pay very well, but they will fill the down time and provide at least some income. Fortunately, I only did four of these when I first started my practice, but I was happy to have them.

My experience was that as I did more and more appeals, I established relationships with more and more trial lawyers (including sometimes the trial lawyer on the other side of the case). I guess I did a good job because the trial lawyers often come back on other appeals. And after a while, my practice grew and the appeals just kept coming in.

(Click here to hide most of the post.)

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Breaking into Appellate Law:

Report on Teenage Use of the Internet: The top of the Drudge Report currently has a special link with the teaser "TEENS ONLINE: SEX, DRUGS AND TEXT MESSAGES...". If you click on the link, you get to this story:

Study: Teen Online Chats Largely About Drugs, Sex
  (CBS) NEW YORK Parents who think their teens' online conversations with peers are innocent may want to reconsider. A new study shows 1 in 10 of their messages discuss drugs or sex.
  The messages are posted on common online message boards.
  "'Crunked' is like the cool way of saying 'I got drunk,'" said 19-year-old Lucky O'Donnell. "'Scag' is one of the harder ones to figure out and that's heroin."
  O'Donnell knows the risks all too well. He went online to find out where to get cocaine. He's now in recovery.
  "Mostly it was, where are we going to meet up to get it," he said in reference to scoring some cocaine.
  A new study by Caron Treatment Centers finds 1 in 10 messages analyzed involved teens seeking advice from their peers on how to take illicit drugs "safely" and without getting caught.

  Could it really be that teen online chats are largely about drugs and sex, and that 1 in 10 messages were about how to take drugs safely without getting caught? What is happening to the youths of America with their Internets?

  Well, I found the "Caron Treatment Centers" report, posted on line here (.pdf), and it turns out that the report is pretty different from the news coverage of it. The report studies where teenagers go to discuss and learn about alcohol and drugs online. The key finding is that teenagers tend to discuss these topics on message boards more than on MySpace or blogs, which the authors plausibly explain as resulting from the greater anonymity of message boards.

  So how much discussion of alcohol, drugs and sex are there online? Well, the report doesn't cover discussion of sex. If I read the study correctly, however, it says that about 1% of the content of postings in "teen communities" (which I think includes message boards, blogs, myspace, etc.) are about about drugs, and another .6% or so are about alcohol. (see p. 19) Plus, at least according to the press release, about 10% of that content (about .1% of the total, I gather) is about how to take drugs safely without getting caught.

  I guess the headline, "Less Than 2% of Teen Discussions Posted Online on Drugs and Alcohol" was too wordy.

Repressed Memory Lawsuit:

I just came across this eyebrow raiser: "In action arising from defendant's alleged nonconsensual sexual touching of plaintiff merely 50 years [!!!!]before plaintiff filed her complaint, defendant moved in limine to exclude repressed memory evidence. The District Court, Harrington, J., held that validity and reliability of phenomenon of repressed memory has been established [!!!!]." Shahzade v. Gregory, 923 F.Supp. 286 (D. Mass.1996).

The paragraph above is from the West summary; the word "merely" appears gratuitous, and almost seems like editorial commentary by the West editor. In fact, I think the editor meant to write "nearly". Freudian slip?

The opinion is a bit cursory, but the court here seems to have thought that clinical psychiatrists have more insight into the validity of repressed memory theory than do "outsider" researchers, which is precisely backwards.

Congratulations to Judge Douglas Ginsburg

(former boss of Conspirator Erik Jaffe) on his engagement!

Congratulations also to Judge David Sentelle (former boss of Conspirator Jonathan Adler) for having been recognized, contrary to original reports, as not a bigamist. Thanks to How Appealing for the pointer.

UPDATE: D'oh! I originally called Judge Ginsburg "David," a silly slip — a colleague of mine is named David Ginsburg, and though the two of them look not much more alike than Judges Ginsburg and Sentelle, some neurons somehow got crossed in my head. Embarrassing; thanks to a reader for correcting me on this.

Seeking Authors of Two Unsigned Student Notes

Can anyone please tell me who wrote the student Notes titled, "Looking It Up: Dictionaries and Statutory Interpretation" (Harv. L. Rev. 1994), and "Why Learned Hand Would Never Consult Legislative History Today" (Harv. L. Rev. 1992)? I want to mention them as examples of oft-cited notes (>85 academic citations for Hand, 110 for Dictionaries, 10 case citations for each). Thanks!

[UPDATE: A query to a lawprof discussion list quickly resolved this for me; Looking It Up was written by Prof. Kevin Werbach (Wharton), and Learned Hand was written by Judge Mark Filip, who clerked at the Court the year I did. Between Judge Filip's note, Jim Ryan's excellent Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment (>100 citations), and my Freedom of Speech and Workplace Harassment, we apparently had a good student Note year.]

A Question I Will Pose to Robert Bork if I get the Chance:

I mentioned in an earlier post that I will be taking part in a conference on the works of Judge Robert Bork. Despite suggestions by various commenters, I'm not going to ask Bork about his recent tort lawsuit (which I briefly discussed here). If I get the chance, I would however like to ask whether his views on legal and/or political issues changed as a result of the ordeal he went through during his ultimately unsuccessful Supreme Court nomination process.

Although Bork was a staunch conservative even before the defeat of his nomination, it seems to me that he became more radical (or perhaps more reactionary) in some of his views afterward. For example, in Slouching Towards Gomorrah, the 1996 book I will be commenting on at the conference, Bork advocates the near-total abolition of judicial review. In his pre-confirmation writings, e mehrely defended the view that judges shouldn't overrule statutes unless they went against the original meaning of the Constitution. Slouching is also notable for some quite harsh invective against liberals (for example, comparing them to fascists). This too goes beyond what I have read in his pre-1987 writing.

It would be interesting (at least to me) to know whether Bork held these views even before 1987, or whether (as I suspect) the bitterness caused by the confirmation process radicalized him.

Related Posts (on one page):

A Question I Will Pose to Robert Bork if I get the Chance:
Conference on the Works of Judge Robert Bork:

Final Comments on My Filming Experience: Late yesterday I finished my part of the filming on Inalienable. I got my first direction today as the director told me he wanted me to react with horror to the (pretend) showing of a video in court. So I had time to think of how to react. Through all the hearing my laptop was open, but during the final scene, we shot yesterday, I had chosen to keep it closed. For this scene, I decided my reaction would include slowly closing my laptop cover as I stared at the screen. After the first take no one told me to try it a different way for the second, so it must have been all right.

Everyone involved in the production was so warm and generous. When an actor finishes his role, they announce to the crew and cast the "production wrap" for that actor and everyone applauds. Yesterday was Marina's and my production wrap. Naturally, she got well-deserved cheers for a terrific performance. I have had several women prosecutors as role models in my career and, as I sat next to her, I really felt she was the real thing. As I write this, I am now reminded of when I was a law student assisting then-Suffolk County ADA Alice Richmond in a murder case when she let me sit at counsel table. Although I knew more about the law than Marina, she was the authority figure for the acting thing. But she really is a natural as a courtroom attorney. I hope she goes up for and gets a part on her beloved Law and Order. Hell, if Shatner can do it. . . I told her to think about going to law school if the day ever came when she was not getting enough work as an actor.

After the wrap, the director came up said nice things about my contributions. Frankly, although he said many things, the only comment of his I can recall was: "You really know how to handle yourself on a movie set" (or words to that effect). I thought this was very high praise coming from him, and says something about the issues I discussed in my previous posts.

After that, the associate producer told me that everyone up here (meaning in the courtroom set where we were standing) was a professional actor and no one could have told that I was not as well. Indeed, for all four days everyone seemed to think that, although I was lawyer, I was also an actor. (During the shoot, more than a few commented that I looked like a real prosecutor on the video. One said I was very well cast.) I had to tell several of the principals that I already had the job I wanted and was unlikely ever to do this again. People who are not academics just don't get what a great career this is--you can even do the occasional movie part!

As I was on my way off the the set, I could not leave because they were recording a voice over of the clerk announcing the case and the court. I stood at the door with my hand on the knob, I was not really paying attention as he did it three times then everyone started gathering up their equipment, but his last words rung in my ear "The United States District Court of Columbia." Of Columbia? I turned to the associate producer, who was standing next to me, and said, "that's not right, did he say it that way every time?" He said "let's see." As everyone was gathering their things and closing down their equipment, we got the script and saw it was written wrong. The director of sound called everyone back together and had them rerecord it with "for the District of Columbia" instead. Then I left the set for the last time.

The producer who was responsible for my involvement in the film told me to come back to the studio as they shoot the rest of the film over the next 10 days. I told him I would. But as I drove to Orange County to stay with my parents, I realized that would be a big mistake. The past four days have been as close to a perfect fantasy experience as I have ever had and, for a TV and movie fan, I think is even possible to have.

Not only was I able to act in a feature film, I was there because of my legal experience and knowledge (which I used as a script consultant before the filming) and was treated as an authority on the set, not just as an amateur intruder, who could add something of value to the production. Everyone was so supportive and respectful throughout. I was always included as an equal at meals or other informal gatherings. Just as I loved hearing all their movie/TV stories (which they love to tell), they loved hearing my legal ones about my time as a prosecutor or arguing in the Supreme Court. When the cast publicity photo was taken yesterday at the bench, there was no question but that I was included with the other "name" actors and the director. Amazing! Possibly the best part was getting spend 4 days at counsel table for hours at a time with Marina Sirtis, a most intelligent and engaging person. And I had watched every episode of Star Trek: The Next Generation, and seen every Star Trek film. So I was a real fan of hers on top of everything else. We actually worked together on our parts, coordinating our moves, exchanging glances, etc. She and I were able to talk about everything and she is nothing if not open and candid. And I also had lengthy intense conversations with Walter Koenig and Eric Avari as well. Eric is a really personable and sweet guy.

So I don't think I will go back. Anything that happens now cannot help but be anticlimactic. And I don't want to do anything to diminish what is going to be a memory I will always treasure.

All Related Posts (on one page) | Some Related Posts:

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InAlienable Publicity Photo:
Final Comments on My Filming Experience:
Randy Barnett Attracts the Envy of Sci-Fi Geeks:...
7am Call:
The Cast
On the Set of "Inalienable":

Genarlow Wilson Case:

Last week, a Georgia trial court ordered wilson freed from his 10-year prison sentence (without parole, and with lifetime sex offender registration) for having a 15-year-old girl perform oral sex when he was 17. The fabulous UCLA Law Library just got it for me (thanks especially to Tammy Pettinato), and posted it in PDF and in HTML. (Thanks also to Edward Tran for scanning it for me.)

As you may recall, the general age of consent in Georgia, the state involved, is 16. At the time Wilson was prosecuted, genitaal sex between an under-18-year-old and a 13-to-15-year-old would only have been a misdemeanor, punishable by a year or less in prison, for the 17-year-old. At the time he was convicted, the Georgia Legislature had also made the very sort of act of which he was convicted into a misdemeanor -- but only prospectively, without applying retroactively to conduct that happened before the enactment of the new law.

What's interesting is the court's reasoning:

Soon after Petitioner's conviction, this same Legislature that passed the original statute changed the statute, making Petitioner's conduct a misdemeanor with a maximum 12 months in jail and no sex offender registration.... This significant change shows this State's clear views as to how persons convicted of Petitioner's conduct should be punished. Under both federal and state standards, the imposition of a felony conviction and sex offender registration is cruel and unusual punishment under the circumstances of this case [relying chiefly on Georgia death penalty cases in which courts looked to the legislature's most recently stated views about which punishments are proper -EV] ....

The court also seemed to suggest that the sentence could be set aside under a general "miscarriage of justice" standard:

In Valenzuela v. Newsome, 253 Ga.793, 796, 325 S.E.2d 370 (1985), the Georgia Supreme Court decided not to define "miscarriage of justice." Instead, the Supreme Court stated that a miscarriage of justice should be determined on a case-by-case basis, "and will depend largely upon the sound discretion of the trial judge." Id. "Hence, on rare occasion, the writ must pass over procedural bars and the requirements of cause and prejudice, when that shall be necessary to avoid a miscarriage of justice." Id. The fact that Genarlow Wilson has spent two years in prison for what is now classified as a misdemeanor, and without assistance from this Court, will spend eight more years in prison, is a grave miscarriage of justice. If any case fits into the definitive limits of a miscarriage of justice, surely this case does.

Yet Valenzuela seemed to treat miscarriage of justice as conviction of the innocent rather than excessive conviction of the guilty: To quote the Valenzuela court, "[the term 'miscarriage of justice' demands a much greater substance [than just a focus on procedural irregularity or reversible error], approaching perhaps the imprisonment of one who, not only is not guilty of the specific offense for which he is convicted, but, further, is not even culpable in the circumstances under inquiry."

The Cruel and Unusual Punishment Clause reasoning seems somewhat stronger, especially since (1) the sentence seems "unusual" in the literal sense of the word, both extremely uncommon within Georgia and throughout the country, and currently legally entirely unavailable in Georgia for, and (2) the court's reasoning on that is quite narrow, focused only on the rare and appealing case where the Legislature has prospectively decreased the sentence (as it did here by an order of magnitude). I'm certainly pleased by the result as a matter of substantive justice, and it seems to me that it has a decent chance of surviving on appeal -- we'll see what happens.

Note that Wilson is apparently not yet free, even temporarily, because the Georgia Attorney General is appealing, but a June 15 Atlanta Journal-Constitution article reports that the AG "does not oppose setting Wilson free on bond pending his appeal. A bond hearing has been set for Wilson for July 5 in Douglas County Superior Court."

Breaking into Appellate Law:

I sometimes hear people ask: How can one break into appellate lawyering, which many people find especially satisfying? So I asked some friends and colleagues, and thought I'd pass along the answers I got.

From Evan Tager, co-chair of the appellate and Supreme Court practice group at Mayer, Brown, Rowe & Maw (the firm with which I'm a part-part-part-time academic affiliate):

Generally, firms like ours prefer candidates who were on law review and had a prestigious appellate clerkship. We will look at the writing sample to get a sense of the candidate's writing style.

There are probably about ten to fifteen firms that have legitimate appellate practices, by which I mean one or more attorneys who do more than simply write briefs for the litigation practice. I guess the two sets of rankings identify most of those practices.

Some firms do indeed engage in bait and switch. We try not to. We are very candid with our recruits that they would be part of a "pool" and would be expected to assist a wide range of litigation partners, not just appellate partners. That said, the reality is that, if they hit the first pitch they see out of the park, they are going to see a lot more pitches. (In this way, Mayer Brown is not like a baseball team.)

From Tom Watson, a UCLA Law School classmate of mine (class of 1992), who works at Horvitz & Levy, a leading L.A. appellate firm:

Since my route to an appellate practice was unusual, I asked for input from our associates. They uniformly recommend securing an appellate clerkship (or two)[:] ...

1. Joining a large law firm with an appellate group may be a good way for a new associate to get a taste of appellate work and to see whether he or she enjoys appellate work. Joining a large law firm with an appellate group is not a good way to do 100% (or even 75%) appellate work. Appellate groups in large law firms tend to be ancillary; the bulk of the work (and billable hours) are generated from the litigation group. If the appellate group happens to get a couple of big cases, the work will be performed by the lead appellate partners. So, even if an associate belongs to the appellate group, he or she will likely spend a lot of time working on non-appellate matters.

Spending a couple of years at a large firm for general litigation training (a good thing no matter what route one takes), and then finding a boutique law firm that specializes in appellate work is a much better route. Law firms that only do appeals (like Horvitz & Levy) will provide associates with the greatest and most fulfilling opportunities to do appellate work.

Scoring an appellate clerkship along the way is even better. No matter what speciality an associate eventually settles on, a clerkship is a wonderful experience.

2. ... First and foremost, a law student interested in appellate work should do everything possible to land an appellate clerkship. As you know, an appellate clerkship (particularly with a federal circuit judge) has essentially become a prerequisite to working here. And the bigger firms with appellate practices are even more interested in the clerkship credential.

Second, a law student should resign himself to the fact that he will not likely obtain appellate work right after law school. It's possible -- perhaps for SCOTUS clerks or assistant DAs -- but rare. Most of us have cut our teeth in big firms, learned the ropes in the trial courts, and bided our time for a few years until we accumulated enough general experience and credentials to lateral to an appellate position. The key factor in seeking post-law school employment should be landing a job where you can show your writing ability. Writing some appellate briefs would be ideal, but dispositive pretrial motions will do. Down the road, the student must show a prospective appellate employer strong writing ability. You can't do that if you've spent your days responding only to discovery demands.

3. Wherever they go, they should beg, borrow or steal as much appellate work as they can get, with an eye to ending up in an appellate group or an appellate boutique down the road. To increase the number of appeals they handle, they can seek out appellate pro bono opportunities (which, at a big firm, are also most likely to provide oral argument opportunities). They should also join appeals-oriented bar groups, like the ABA's Council of Appellate Lawyers or the LACBA's appellate rules committee, and stay active in those groups.

From an anonymous friend who's also an appellate lawyer, and whose judgment on this I very much trust:

Most of the firms that have structured appellate practices or groups, in my experience, also have established Supreme Court practices. So compiling the list of those firms is a good place to start. (Tom Goldstein had an insightful post on his blog last year that catalogs the various firms with established Supreme Court practices, the text of which I've appended at the end of this email.)

There are also, of course, boutique firms that handle almost exclusively appellate work, such as the Horvitz & Levy and Greines Martin firms here in the L.A. area. Obviously if you were to go to one of those firms you'd be pretty much guaranteed the opportunity to work on mostly appellate matters. But if you go to a full-service firm, even one with an established appellate department, there are usually only a handful of partners who are responsible for bringing in and managing a large majority of the appellate work, so the best way to secure a steady diet of appellate work is to establish a close working relationship with those folks.

Most of the established, big-firm appellate practices are based in DC (with Mayer Brown being a notable exception, since I think you guys have a base in both NY and DC [EV: The appellate practice group includes 22 appellate regulars in Chicago, 5 in Houston, 8 in New York, 1 in Palo Alto, and 36 in Washington] and in my experience it's very hard to break into that inner circle if you're not working in the same office where the appellate partners are located.

Related Posts (on one page):

More on Breaking into Appellate Law, from a Sole Practitioner Appellate Lawyer Friend of Mine:
Breaking into Appellate Law:

More Evidence that Most People Don't Find Politics Interesting:

In my last post, I discussed my ignorance of many of the people on the Forbes list of top 100 celebrities, as measured by their income and media exposure. As far as I can tell, only four of the 100 people are political leaders or commentators (in the sense that such activities are their primary claim to fame): Bill Clinton, Rush Limbaugh, Barbara Walters, and Alan Greenspan. And Clinton's fame is partly due to his sex scandals.

This provides additional evidence that most people don't find politics as interesting as pop culture, sports, and other forms of entertainment. Indeed, there are almost as many Formula One race car drivers (2) and cooking gurus (2-3, I think) on the list as political figures (4). Why are people rationally ignorant about politics? In part because it's more fun for them to pay attention to other things.

Finally, I have to take my hat off to Alan Greenspan. Not only is he one of just four political figures on the list. He also made it despite the fact that his main claim to fame was a job that the average man in the street doesn't have the slightest understanding of. Moreover, Greenspan certainly didn't make it on the basis of good looks or charisma. Last, but by no means least, Greenspan is a libertarian and a one-time member of Ayn Rand's inner circle. Alan Greenspan: giving hope to libertarian public policy nerds everywhere.

Related Posts (on one page):

More Evidence that Most People Don't Find Politics Interesting:
Testing My Rational Ignorance of Pop Culture:
Inaccurate "Religious" Beliefs About Secular Issues:
Why Do People Develop "Religious" Beliefs About Secular Issues?:

Medieval literature bleg:

For my medieval reading group at Georgetown Law, my plan is to read works of the Pearl Poet this summer. We're about to finish Pearl and start Sir Gawain and the Green Knight; the text I'm using is Dunn and Byrne's anthology of Middle English literature, which is the book I used in college when I took Ed Condren's course at UCLA in Winter 1993.

My question relates to the other two poems by the Pearl Poet — Patience (not the Gilbert & Sullivan show or anything else) and Cleanness. Those aren't reproduced in Dynn and Byrnes. The standard text seems to be Andrew and Waldron's Poems of the Pearl Manuscript. But that text doesn't have marginal glosses — the glossary is all at the back of the book, which would make it hard to read for an informal reading group that isn't expert in Middle English.

So... does anyone know where I can find versions of Patience and Cleanness in the original Middle English but with good marginal glosses?

BBC Admits Error!:

Or should I say, "error."

The BBC is not known for acknowledging errors or bias, especially when it comes to Middle East reporting, so at first one might be pleasantly surprised to read that the BBC has acknowledged, and corrected, an error. But then one reads what the "error" was:

The BBC apologized this week for referring to Jerusalem as Israel's capital, and promised not to repeat "the mistake," following a complaint by four British organizations.

Arab Media Watch, Muslim Public Affairs Committee, Friends of Al-Aksa and the Institute of Islamic Political Thought sent a joint complaint to the BBC after a presenter on its Football Focus program on March 24 mentioned that Jerusalem was Israel's capital and "historic soul."

The BBC's Editorial Complaints Unit posted a response on its Web site: "The reference was a passing one in a context where the focus was on sport, not politics. While recognizing the sensitivity of the issue of the status of Jerusalem, the ECU took the view that the program-makers had taken sufficient action by acknowledging the error and rectifying the Web site."

Of course, Jerusalem is in fact Israel's capital, and, while one can't verify a "historic soul," I don't see any objective "error" in referring to it as such.

Ironically, this apology came just as a report commissioned by the BBC slammed it for its left-wing bias.

Thanks to Honest Reporting for the pointers.

UPDATE: I'm waiting with bated breath for the BBC to apologize for referring to Belfast as Northern Ireland's capital. What about sensitivity to Irish Republicans?

FURTHER UPDATE: The original context of the remark was that a British and Israeli football team were about to face off. In a segment, Israel in Focus, the announcer said, "While Tel Aviv is the country's youthful beating heart, Jerusalem the capital is its historic soul."

Thinkers vs. doers:

I will be a panelist at America's Future Foundation's Thinkers vs. Doers roundtable tonight at 6:30, Rayburn House Office Building, room B-354. Here's their blurb:

Thinkers v. Doers roundtable this week...

Conservatives and libertarians share some core principles that guide their policy agendas, but once theorizing gives way to politics, compromise is the name of the game. We therefore often seem divided into two camps: "thinkers" and "doers." Those of us who toil in the realm of ideas and ideals — policy wonks, journalists, academics — and those of us in the sausage-making trenches — politicians, staffers, lobbyists. "Thinkers" sometimes accuse "doers" of favoring the politically expedient over the principled, and being more concerned with winning an election or a vote than sticking to principles. "Doers," meanwhile complain that "thinkers" are living in a bubble, oblivious to political reality. If you don't get dirty, they say, you won't make change. Who's right and who's wrong? Are they both sides of the same coin? Or is politics something apart from — and maybe opposed to — ideas?

Joining us to debate are former White House political strategist Raul Damas, Gene Healy of the Cato Institute, Georgetown Law Visiting Professor Sasha Volokh, and Sarah Longwell of Berman and Company. Brian Hooks of the Mercatus Center at George Mason University will moderate. This event will take on Wednesday, June 20th, on Capital Hill, in the Rayburn House Office Building, Room B-354. Drinks start at 6:30 p.m.; panel begins at 7 p.m. AFF Roundtables are free for members, $5 for non-members. So join today!

I know what you're thinking: Capital Hill -- isn't that in the Australian Capital Territory? Plus, is a "Doer" more like a Manitoba politician or more like a South African settler? Regardless, see you there.

China's Number One:

Researchers in the Netherlands report that it looks as if China has already overtaken the United States as the world's largest emitter of greenhouse gases. (See also here.) Fossil fuel energy use has soared in China, where two new power plants -- most of which burn coal -- open each week. But this is not China's fault, according to one British government official who told the BBC that China would not emit so much carbon dioxide were it not for Western consumers buying Chinese goods.

United States v. Washington: Here's an interesting Fourth Amendment case from the Ninth Circuit written by Judge Gould and joined by Judges Paez and Rawlinson, via Decision of the Day.

  Facts: A white Portland police officer approaches an African-American male (the defendant) sitting in his car one night and asks what he's doing. The officer asks the defendant if he has anything on his person that he shouldn't have; when the defendant says no, the officer asks if the defendant would consent to a search so the officer could check. The defendant agrees, and the officer asks the defendant to step out of the car and directs him away from the car so he can conduct the search away from the car.

  A second white officer arrives, and the first officer searches the defendant and finds nothing. The officer then asks the defendant about whether there is anything in his car that he shouldn't have; the defendant says no, the officer asks if he can check and, the defendant agrees. The officer searches the car, blocking the defendant's access to the car during the search, and uncovers an illegal firearm. The defendant is charged with being a felon in possession of a firearm.

  District court proceedings: The defendant moves to suppress the gun on the ground that it was discovered in violation of the Fourth Amendment. The district court holds a suppression hearing and rules that the search was lawful: the court finds that the defendant was not seized during the interaction and the consent to search the defendant's person and car was voluntary. However, there is testimony at the hearing about two then-recent incidents in which white Portland cops shot African-American suspects during traffic stops. The Portland police had widely published pamphlets in response to the incidents about how to react during traffic stops; th pamphlets instructed citizens to "follow the officer's directions" when stopped, and "if ordered, [to] comply with the procedures for a search."

  Held by the Ninth Circuit on appeal: The gun must be suppressed because the district court's factual findings about custody and consent are both clearly erroneous. First, based on a totality of the circumstances, the officer's interaction with the police was sufficiently intimidating that a reasonable person wouldn't have felt free to leave ans was therefore "seized":

[U]nder the totality of the circumstances — [the first officer's] authoritative manner and direction of [the defendant] away from [his] car to another location, the publicized shootings by white Portland police officers of African- Americans, the widely distributed pamphlet with which Washington was familiar, instructing the public to comply with an officer's instructions, that [the officers] outnumbered Washington two to one, the time of night and lighting in the area, that [one officer] was blocking [the defendant's] entrance back into his car, and that neither [officer] informed [the defendant] he could terminate the encounter and leave — we conclude that a reasonable person would not have felt free to . . . leave the scene.

Second, based on a totality of the circumstances, it was clearly erroneous for the district court to conclude that the defendant's consent was voluntary. The defendant had been seized when he was asked to consent to a search of the car, and that weighs heavily in favor of finding the consent involuntary. Further, the context was significant:

[Consent was granted] (1) at night, (2) [when the defendant was] outnumbered two-to-one, (3) in the unique situation in Portland between the African-American community and the Portland police, and (4) after complying with [the first officer's] detailed instructions, (5) and being searched under [the officer's] direction, at [the] squad car with his hands on the top of the squad car, (6) with the return to his car blocked by [the second officer], so that (7) a reasonable person in Washington’s circumstances would not have felt free to terminate the encounter and leave.

The court concludes:

Given that it was late at night on a dark street, that [the defendant] had been led away from his car and seized by two police officers, and the tension between the African-American community and police officers in Portland in light of the prior shootings above-mentioned, we have no confidence that [the defendant's] assent to the car search was voluntary under the total circumstances.

Further, even if the district court's factual finding that the defendant consented was not clearly erroneous, the consent was a fruit of the illegal seizure. Thus the consent was invalid and the search of the car violated the defendant's rights.

My quick reaction: These are sympathetic facts for the defense, as the police officer was just fishing and had no reasonable suspicion or cause at all. But were the district court's factual findings really clearly erroneous? The panel's opinion doesn't tell us much about the testimony at the suppression hearing, or what factual findings the district court made beyond the ultimate factual questions of custody and voluntariness. (This makes it hard to distinguish some of the factual issues from mixed issues of law and fact.) But based on my read of the opinion, the evidence that the district court's findings were "clearly erroneous" seems pretty thin. Readers, what do you think? Am I misjudging the case?

Oh, and I should add that I had to take out some details of the opinion just to keep it a reasonable length; needless to say, the best way to weigh in here is to read the opinion first.

Testing My Rational Ignorance of Pop Culture:

Looking at Forbes' list of the top 100 celebrities (as measured by pay and media exposure), it turns out that there are 26 of these people that I've never heard of, and another 10-15 whom I vaguely recollect but don't really know what they do. If you take out the 20-30 athletes (I am a big sports fan), my ignorance of the actors and pop stars would really be evident. I suspect that the average American could identify a significantly higher percentage of the nonathlete celebrities on the list than I could.

Just as the average American is rationally ignorant about politics because it doesn't interest him much, I am rationally ignorant about Hollywood and pop music stars because most of them don't interest me much (other than the ones who co-star with Randy Barnett, of course!).

The lesson to be learned, if there is one, is that rational ignorance is a universal phenomenon, not limited to the "stupid" unwashed masses. We are all inevitably ignorant about a wide range of topics. Unfortunately, however, popular ignorance about politics probably causes more social harm than academic geeks' ignorance about pop culture.

The highest-ranking celebrity I'd never heard of: Jay-Z, ranked no. 9.

Related Posts (on one page):

More Evidence that Most People Don't Find Politics Interesting:
Testing My Rational Ignorance of Pop Culture:
Inaccurate "Religious" Beliefs About Secular Issues:
Why Do People Develop "Religious" Beliefs About Secular Issues?:

Make Money Fa$t Reminder:

A colleague of mine whom I e-mailed about the California unclaimed property search site reports, "thanks again for the tip on unclaimed property a bit ago! I got a check for $265 over the weekend!" It thus sounds like you can do more than just claim your unclaimed money -- you can actually get it back. So if you've lived in California, check out this California government site.

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"Hang on St. Christopher

with the hammer to the floor": I don't know much about Catholic teaching, but this item from ~~The Onion~~ the official Vatican Information Service struck me as a little more mundane than I'd expect:

In the Holy See Press Office this morning, the official presentation took place of the document "Guidelines for the Pastoral Care of the Road," published by the Pontifical Council for the Pastoral Care of Migrants and Itinerant People. Participating in the press conference were Cardinal Renato Raffaele Martino and Archbishop Agostino Marchetto, respectively president and secretary of that pontifical council.

The document - published in English, French, Spanish, Portuguese and Italian - is divided into four sections: The pastoral care of road users, pastoral ministry for the liberation of street women, the pastoral care of street children, and the pastoral care of the homeless.

Cardinal Martino indicated that the idea of preparing this document arose during the First European Meeting of National Directors of the Pastoral Care of the Road, held in 2003. "Its aim," he said, "is to guide and coordinate all the ecclesial bodies in the world of the pastoral care of the road, and to encourage and stimulate episcopal conferences of countries in which this form of pastoral care does not exist, to organize it."

Commenting on the first part of the document, Cardinal Martino expressed the view that "Church and State, each in its own field, must work to create a generalized public awareness on the question of road safety and promote, using all possible means, ... an adequate education among drivers, travelers and pedestrians."

Referring to the evangelization of the road, the president of the pontifical council recalled that the Church also aims at "the religious formation of car drivers, professional transporters, passengers, and all those people who, in one way or another, are associated with roads and railways." In this context, he recalled the fact that in many countries there are "fixed or mobile highway chapels, and pastoral workers who visit motorway service areas and periodically celebrate liturgies there.

Huh. Well, maybe I'm taking too narrow a view of the role of the spiritual in daily life, or of what makes sense for the Church to focus on. Check out the Guidelines and see for yourself. A sample:

The duty to protect goods may be compromised not only by careless driving, but also by not maintaining a vehicle or means of transport in safe mechanical order, by neglecting periodic technical check-ups. The duty to have vehicles serviced should be respected.

Uh, sure, I've got to agree with that, and I'm not even Catholic. Oh, and "the following initiatives are highly beneficial: ... adequate road signs and paving; elimination of unmanned level crossing; and creation of a public sense of responsibility via specific associations and the collaboration of road service personnel with road users."

And "During a journey it is also beneficial to pray vocally, especially taking turns with our fellow travellers in reciting the prayers, as when reciting the Rosary." Yeah, I've been the passenger on some journeys like that.

Related Posts (on one page):

A Question I Will Pose to Robert Bork if I get the Chance:
Conference on the Works of Judge Robert Bork:

Zeroth Drafts:

This approach seems to have worked well for my Academic Legal Writing Circle seminar students last year, so I thought I'd pass it along so other students who are writing articles or seminar papers could consider it.

One way to get a first draft done is to begin with what I call a “zeroth draft” -- something halfway between an outline and a first draft. Here’s one way of doing it:

1. Start by writing a fairly complete Introduction, if you can. The Introduction can help you get a better grasp of what you’re trying to say.

2. Lay out in your document the structure that you anticipate for the rough draft, including the section and subsection headings.

3. For each subsection, start by writing a sentence or two summarizing the argument in the section. For instance, if you’re writing about the First Amendment and workplace harassment law, one section might read:

A. Fighting Words

Workplace harassment law can’t be justified using the “fighting words” exception because it isn’t limited to speech that isn’t face-to-face, and isn’t likely to immediately start a fight.

4. Then, when you’ve filled in all the subsections that you can (or if you’re blocked on what to write in some subsections), go back over the one-sentence summaries and expanded them to a paragraph or two, for instance:

A. Fighting Words

Workplace harassment law can’t be justified using the “fighting words” exception because it isn’t limited to speech that isn’t face-to-face, and isn’t likely to immediately start a fight. The premise of the exception isn’t that all offensive speech or all insults are punishable because they offend -- it’s that they (i) lack value, (ii) can be restricted without interfering with valuable speech, since one can still convey the same views in other ways, and (iii) are likely to cause an immediate fight. Nothing in harassment law limits itself to this narrow category; it can just as well cover [give examples of non-one-to-one-speech].

Discuss Cohen v. California as example of this limitation.

5. Repeat this expansion as much as you can, for instance expanding each paragraph into a couple of paragraphs, each couple of paragraphs into a full subsection, and so on.

6. Don’t worry about spelling, grammar, footnotes, and the like. Feel free to use bulleted and numbered lists. Use whatever shortcuts will help you express your substantive points in as much detail as you can provide.

7. Do worry a little about statements that seem too abstract or conclusory -- see if you can, in the next pass, make them more concrete or provide more support for them. But worry only a little: The difference between a zeroth draft and a first draft is you should expect some of the zeroth draft to lack concreteness or close argument.

Inaccurate "Religious" Beliefs About Secular Issues:

David Bernstein asks: "Why do people develop 'religious' beliefs about secular issues?" In this article, I provide an answer: Because, in most such cases, there is little incentive to learn the truth. The article focuses on political beliefs, where it is rational to be ignorant because there is so little chance that any individual vote will determine the outcome of an election. As a result, those citizens who do bother to acquire political information often do so for reasons other than the pursuit of truth. For example, they enjoy having their preexisting prejudices reinforced, "rooting" for their political "team" (much like sports fans enjoy rooting for the Red Sox or Yankees), or the like.

But the lesson applies more broadly. As I point in the article, polls show that large numbers of people hold irrational beliefs about nonpolitical subjects too. Thus, large numbers of people believe that we are being visited by UFOs piloted by extraterrestrial beings, believe in ghosts, and reject the theory of evolution. Wildly inaccurate beliefs about these subjects - like inaccurate political beliefs - don't harm most people in their daily lives, and they can be enjoyable and emotionally satisfying. It's fun to believe in UFOs or ghosts, emotionally satisfying to believe that God "specially created" you, and so on. Thus, for many people, it is perfectly rational to let considerations other than rigorous truth-seeking guide their belief-formation processes on many issues.

Unfortunately, individually rational behavior can often lead to collectively harmful results, as when flawed political beliefs lead to harmful government policies.

In an entirely different category are the relatively rare people who actually act on wildly inaccurate beliefs in ways that harm them personally. For example, Timothy McVeigh blew up the Oklahoma Federal Building because of his highly implausible belief that doing so would lead to the overthrow of the federal government by white racists, as depicted in the idiotic Turner Diaries. Obviously, McVeigh's actions instead led to stronger security measures, and to his own capture and execution. Such people are, however, very rare compared to the millions who hold foolish beliefs that do not directly harm them.

NOTE: I assume that, by "religious," David means something like "based on faith without any evidence," rather than based on belief in a God or gods. So defined, even atheists can (and often do) fall for foolish religion-like beliefs about secular matters.

Related Posts (on one page):

More Evidence that Most People Don't Find Politics Interesting:
Testing My Rational Ignorance of Pop Culture:
Inaccurate "Religious" Beliefs About Secular Issues:
Why Do People Develop "Religious" Beliefs About Secular Issues?:

Donald Horowitz on Iraqi Partition and the Likely Effect of A US Withdrawal:

Duke political scientist and law professor Donald Horowitz is one of the world's leading experts on the interaction between federalism and ethnic conflict. In this Wall Street Journal op ed, he discusses the (mostly negative) consequences of a quick US withdrawal from Iraq, which would likely result in a three way partition of the country.

Day 4: 8:30am Call My last day of shooting on the film. Because shooting went so late yesterday there is a mandatory 12 hour break and so we start late the next morning. Today we begin by shooting the witnesses that precede the final climax we filmed yesterday. Then we move on to shoot the first day of the hearing. On the political note, when I told the named actor who is playing today's expert I was a lawyer not an actor and that I had been a DA. He said, "Good, because if you had been defense attorney, I would have issues with you." (For MY opinion on defense lawyers click here.) So there is more ideological balance in the cast than I first thought, though the wearing one's politics on one's sleeve is a constant.

I thought I would say a bit more about technical advising. I am not formally a technical adviser for the film, though the cast and crew are using me as one. Still, the director seems to view me as potential fly in the ointment (but see below). I have been pretty passive about even scrutinizing the legalities of the hearing. I made my efforts to clean up these thing when advising on the script a few weeks ago. What remains I figure is just going in regardless of what I say. And I mentioned in my previous post the many constraints that make objecting to anything so futile ex ante that one just doesn't bother.

But what has been a surprise to me is how much Eric and Marina, who are playing the lawyers, really care about the realism of what they are doing. Marina tends to clean up her dialog with her Law & Order training. Eric approaches me frequently to ask about his lines and I either reassure him or offer him an alternative that he then decides whether to use.

Yesterday, I was walking on the set and Eric was in conference with the director. He turned to me and said, "speak of the Devil, we were just saying we need to talk with you." His problem was with a ridiculous objection he was supposed to make. He said even a neophite would see how silly it was and he was right. I had removed that from the script in my rewrite, but it was part of a pretty major restructuring of the hearing I was proposing and, although my revisions were initially accepted, eventually it was decided to stick with the original structure. When that was restored, also restored were many of the smaller errors I had edited from the script that the movie people would never realize had been changed or why.

The problem was that, at this point in the hearing as it was now structured, there was no credible objection beyond the prejudicial impact outweighing the probative value of the evidence, and that was too big a mouthful for that highly charged moment in the action. So finally, I suggested he just object loudly without stating a basis and the judge would just over rule it, as had already happened numerous times in the film. [ASIDE: The director just interrupted my blogging to ask me a question about an objection and ruling we are filming today because he found it unrealistic. I proposed a possible solution. It seems he also sees me as a potential resource. More on this below.]

So the solution to the legally stupid objection and stupid judicial ruling yesterday was simply to cut the basis of the objection and the ruling. [While I am typing here, the director and producer are discussing the cost overruns caused by yesterday's overtime.]

But then Eric raised another issue. The legal business culminates in a violent outburst in the courtroom. Eric wanted a reason to be located away from the fight or he would just be seen standing by. Yesterday, Marina had wanted to get away from the fight so she would not have to be on the set for hours as they reshot the fight over and over from every angle. So Eric suggests he ask to approach the bench and I offered the dialog for the judge to tell all attorneys to approach, which would get us all out of the action. [BTW, no one ever tells me what to do, though I am in the scene too, so I just improvise. I assume this mainly means I am not in the shot.]

When we were set to go we blocked the action a couple times. It then occurred to me that there was a big problem. Since we were all at the bench we now needed a legal discussion and ruling before the disputed evidence could be introduced. That just returned us to where we began and added the need for another scene at the bench to be written and filmed. This time I decided to be proactive so I went to the director who by now was on the bench telling the judge about the changes we had made. I could not speak with him from below because of a dolly track the camera was using so I had to go all the way onto the bench myself. I tried to explain the problem and the director said, we'd think about it later. I said fine. A while later, when we were blocking again he looked at me and said, "Oh, I see the problem." There was just no way to get on with the action. So we quickly decided to go back to our original simple solution, and then after Marina and I have our confrontation and she rises to present the evidence we all just move out of range of where the fight was going to happen. Problem solved, but it took quite a while.

This morning's question concerned another unrealistic ruling by the judge that bothered the director. The judge responds to the objection that says she does not see the relevance of the issue raised by the lawyer and then comments on the evidence. The problem was that the issue was clearly relevant and the judge should not be offering her characterization of the evidence. He asked me if I could think of an alternative. The shortest not completely accurate, but still plausible, answer is "That's for your argument, counsel."

Just before finishing this post, we filmed an action scene from yesterday's climax in which I am finally out of my chair and ducking when a shot is fired. I have no idea if I am in frame or focus, but at least I am on my feet and moving. I may be a back-suited blur behind the shooter in the background that only I will recognize.

All Related Posts (on one page) | Some Related Posts:

Want More Star Trek?
InAlienable Publicity Photo:
Final Comments on My Filming Experience: ...
Pictures From the Shoot:
Day 4: 8:30am Call
My Big Scene With Marina: ...
7am Call:
The Cast
On the Set of "Inalienable":

Interview with Victor Cosentino, Author of a Very Successful Student Note:

Many student law review articles, as I've noted before, do get cited by courts — but most never do, and many get cited only once or twice. Occasionally, though, one sees a student article that is cited a lot, even a lot more than most articles by tenured academics, and seemingly has a significant influence. Of the student articles I've seen that are published since 1990, the two most-cited-by-courts are Janet Hoeffel's The Dark Side of DNA Profiling: Unreliable Scientific Evidence Meets the Criminal Defendant (Stan. L. Rev. 1990), which has been cited by over 90 academic works and over 25 cases; and Victor J. Cosentino's Strategic Lawsuit Against Public Participation: An Analysis of the Solutions (Cal. Western L. Rev. 1990), which has been cited by 10 academic works but 19 cases.

I hope to have some words by Prof. Hoeffel (who now teaches at Tulane) soon. But for now, I thought I'd post an interview with Victor Cosentino, who's now at lawyer at Larson & Gaston in Pasadena.

What particularly interests me — and, I would hope, many law students — about Mr. Cosentino's article is precisely that it wasn't published in a Top 10 law review or by a student at a Top 10 law school. The Washington & Lee Law Library law journal ranking ranks Cal Western at #150 in combined rating of law review citations, and not far from there in court citations. Setting aside Mr. Cosentino's article, all the other articles in the journal from 1990 to now have gotten only 45 court cites put together. Also, most of the other most-cited pieces were written by students who are now professors; and becoming a professor can help get your piece cited more (though of course there are also other interactions between the two), since people who stumble across the piece might recognize your name and be more inclined to read the piece. Yet Mr. Cosentino's piece has had a readership and an impact that most professor would envy. I know I certainly do.

In any case, here's the interview; many thanks to Mr. Cosentino for taking the time to respond (some paragraph breaks added):

Thanks for giving me a call today. As you can imagine, it is not the kind of call I get everyday.

I took a stab at answering your questions, below. Please let me know if you need any clarification.

Victor ...

1. Why did you decide to write — and publish — your article?
2. How did you get the idea for the article?

Our law review required all second year student law review members to write an article. Like many students, I had to cast around through a number of topics to find something that interested me and had room for another article.

The issue of SLAPPs caught my eye, because it had only recently be labeled as an actual type of litigation, and then only by non-legal academics. The subject appealed to me because SLAPPs were typically the reverse of the David versus Goliath story, because while the Davids where often sympathetic, the Goliaths won devastating victories by using the legal system. There were very few articles on the topic and most of the writing was still in newspapers and magazines.

From a practical standpoint, the fact that the subject was new territory appealed to me more than the standard approach of writing an article on an important new case which would be covered in a dozen articles within the year.

The article was selected for publication by the editorial staff of the law review and I was honored to spend another full semester preparing it for publication.

3. Did you find you learned useful things — whether about writing, about legal reasoning generally, or just about the area you were discussing — while writing the article?

In writing the article, I realized there were no obvious solutions to SLAPPS using existing legal processes. While I was writing, the California legislature also took up the issue and proposed new legislation which has been modified several times since then. My approach forced me to look through a wide variety of legal tools which I probably would not have thought about otherwise. The lasting impression I came away with though is that the legal system itself could be punitive for participants. Sadly, sixteen years later, I think that continues to be the case.

As a writer, the process of writing the article and editing it through publication was very important. Before entering law school, I had been a computer programmer, and so other than technical documentation, writing this article was the first time I had ever written anything this long and detailed.

At the time I was writing the article, the "plain-English" movement was still young so most of the legal writing I encountered was older and fairly dense. I learned through this process that complicated subjects could be discussed effectively with relatively simple sentences. To this day, whether in a pleading, letter or a contract, I strive for accuracy and clarity in my writing. I think the law and facts (even when both are very complicated) are most compelling when stripped to the essentials.

4. Have you found that having published the article has helped you in your career ...?

I never attempted to market or publicize this article; that never occurred to me as a law student. Several years later though, this article helped me get another article published in a magazine (BYTE), which lead to several more paid writing assignments and a speaking engagement. The subsequent work was not in the same area as the law review article, but I think the publication of the article helped persuade the editor for the next project that I could do the job.

My mistake was not to continue nurturing those publishing contacts and to not keep writing. But, life got very busy and something had to give. So, I do think writing can help a legal career if you keep doing it. I do not think the subject of a law school journal article needs to define a career path.

5. Is there anything else you'd like to say about all this?

Sometimes things take on a life of their own. This was one of those times. I wrote this article in 1991 and was happy with it and pleased that it was published. After law school, I left California for a number of years and started practicing in a different area of law. I rarely thought of the article again except when I was updating my resume. So, I was quite surprised by the frequency with which the article was cited.

I suppose it helps that article came out just as the area of law was taking off. As a result of that lucky timing (and I'd like to think the quality of analysis) this article has been part of the development of SLAPP law in California.

Frankly, I think that's one of the advantages of a student note over most other legal writing. Law students can play with ideas in the abstract without the constraints of worrying about the actual effects on the litigants. In their day-to-day work, neither lawyers nor judges have that freedom because the positions they take affect actual people. I think my article has shown that it's very important for law reviews to leave room for students to explore new and emerging topics.

Related Posts (on one page):

Thoughts from Janet Hoeffel, Author of a Very Successful Student Note:
Interview with Victor Cosentino, Author of a Very Successful Student Note:

Batting 1.000:

My friend Jim Ho (a former clerk for Justice Thomas who's now an appellate lawyer at Gibson, Dunn & Crutcher) reports that Justice Kennedy is "16 for 16 in 5-4 cases so far" this Term.

Justice O'Connor, he further reports, "never had a perfect record in 5-4 cases (not countering her partial service during [the 2005 Term]." That, of course, stands to reason: She and Justice Kennedy were both swing voters then, so sometimes it was Justice Kennedy who made up the majority while she was in the minority. Now that Justice Kennedy is the one man at the middle of the Court, generally speaking as he goes so goes the majority.

Note also that now that Justice O'Connor and Chief Justice Rehnquist have left, one recurring 5-4 pattern in which Justice Kennedy was usually in the minority -- the sentencing/jury trial cases, in which Rehnquist, Kennedy, O'Connor, and Breyer routinely dissented -- may end up being a 6-3 pattern; see Cunningham v. California, the most recent such case, in which Kennedy, Breyer, and Alito dissented. So in part Justice Kennedy's perfect 5-4 record might stem from situations such as this, where his view is getting less popular on the Court and is thus being excluded from the 5-4 count. Still, one can't deny that in many cases he is the Justice to watch. SCOTUSblog's StatPack has more details. In 7 of the 16 cases, Kennedy joined the four generally more conservative Justices, in 5 he joined the four generally more liberal Justices, and in 4 the Court split in other ways.

Related Posts (on one page):

From India to Kush:

Those who are familiar with the Book of Esther, the sacred text of the Jewish holiday of Purim, know that it starts with something like, "And it was in the days of Ahasueres, he was Ahasueres, who ruled from Hoadoo (India) to Kush, one hundred and twenty-seven states." We know, of course, a fair amount about ancient India, but we're about to learn a lot more about Kush.

The Facts and Injunction in Warshak v. United States: In this post, I want to explore the facts and the scope of the injunction in the Sixth Circuit's big e-mail privacy decision in Warshak v. United States. In my next post, I'll cover the court's legal analysis; and in the posts after that I'll critique them.

  For the last few years, Steve Warshak has run a company selling pharmaceutical drugs such as penis enlargement pills and diet pills called Berkeley Premium Nutraceuticals. (Background here.) In 2006, Warshak was indicted on 107 counts of wire fraud, bank fraud, money laundering, and assorted other crimes; that same year, the FTC also brought a civil action against him and his company.

  This case involves a civil suit filed by Warshak against the United States while his criminal investigation was in progress but after he had already been sued by the FTC. In 2005, the government was investigating Warshak and obtained court orders under the Stored Communications Act to compel two commercial ISPs — South Carolina-based Nuvox Communications and California-based Yahoo! — to disclose material in Warshak's e-mail ccounts. The Stored Communications Act allows the government to compel contents held by ISPs for more than 180 days using less process than a warrant, and, depending on how the statute is construed, it may also allow the government to obtain "opened" e-mail stored less than 180 days with less process as well. The government also obtained a court order permitted by 18 U.S.C. 2705 delaying notice to Warshak for 90 days.

  Both Nuvox and Yahoo turned over e-mails to the government in response to the court order, although they disagreed on how to read the statute and therefore released different information. Nuvox turned over both opened e-mails and e-mails in storage for more than 180 days. California-based Yahoo, presumably under the direction of a 2004 Ninth Circuit SCA decision in a case called Theofel v. Farey-Jones, turned over only e-mails in storage for more than 180 days.

  What happened next isn't exactly clear, but it looks like counsel for Warshak somehow found out about the disclosures, and that by that time more than 90 days had passed (the government apparently forgot to renew its order to delay notice, so notice had been due but not received.) Warshak, then not yet indicted, filed a civil suit alleging that the use of the Stored Communications Act to compel his e-mails violated both the SCA and the Fourth Amendment. Of importance here, Warshak also sought a preliminary injunction blocking the government from using the Stored Communications Act to compel the contents of e-mail with less process than a warrant in all future cases in the Southern District of Ohio.

  The district court granted Warshak's motion in part in order to stop what it thought would be unconstitutional uses of the Stored Communications Act. Specifically, the district court enjoined the government from compelling e-mail belonging to people in the Southern District of Ohio from ISPs anwhere in the country using Stored Communications Act orders less than full warrants unless the government provided notice to the persons first. The scope of the injunction was sort of a head-scratcher, but apparently it reflected a belief that use of less than a warrant violated the Fourth Amendment without notice but that less than a warrant was okay if the suspect was given prior notice. The government then appealed, and the issue before the Sixth Circuit was whether the district court properly granted the preliminary injunction.

  In the decision handed down yesterday, the Sixth Circuit mostly affirmed the district court's injunction, albeit with one modification. Under the Sixth Circuit's opinion, the federal government can't use a Stored Communications Act 2703(d) order to get the contents of "personal e-mail" held by an ISP in the name of a resident of the Southern District of Ohio unless the government either provides notice and an opportunity to be heard or else makes a fact-specific showing that the account holder maintained no reasonable expectation of privacy "with respect to the ISP." The panel explains earlier in the opinion that the test for whether a "reasonable expectation of privacy with respect to the ISP" does not exist is whether "the ISP or other intermediary clearly established and utilized the right to inspect, monitor, or audit the content of e-mails, or otherwise had content revealed to it."

  If I understand what the Sixth Circuit has in mind, the government has three possible ways to compel the contents of e-mails under the Sixth Circuit's injunction: 1) via a full probable cause warrant, 2) with a 2703(d) order preceded by an ex parte proceeding in which the government first notifies the ISP and then proves to the issuing magistrate that "the ISP or other intermediary clearly established and utilized the right to inspect, monitor, or audit the content of e-mails, or otherwise had content revealed to it," or 3) if the government first notifies the customer, under a lower reasonableness standard as a matter of constitutional law and a 2703(d) specific and articulable facts standard as a matter of statutory law.

  Oddly, the injunction does not seem to address the other path the SCA permits, namely compelling contents with a subpoena. The injunction doesn't mention subpoenas, although the opinion's reasoning suggests that it should. I'm not sure what to make of that.

All Related Posts (on one page) | Some Related Posts:

Sixth Circuit Grants Petition for Rehearing En Banc in Warshak v. United States:
Warshak Files Reponse; Sixth Circuit Rejects All Amicus Submissions:
My Amicus Brief in Warshak v. United States:...
The Legal Rulings in Warshak v. United States:
The Facts and Injunction in Warshak v. United States:
A Series of Posts on Warshak v. United States, the E-Mail Privacy Case:
Sixth Circuit Blockbuster on E-Mail Privacy:
Warshak v. United States:

Gas Prices and Obesity:

Here is an interesting paper by Washington University economist Charles Courtemanche, "A Silver Lining? The Connection between Gas Prices and Obesity," recently posted on SSRN.

Rising gasoline prices have become a major concern in the U.S. over the past few years. An increase in the cost of driving causes people to consider substitutes, such as walking and taking public transportation, both of which are likely to result in additional physical exertion. Since exercise is known to decrease body weight, it is possible that the recent escalation in gas prices will have the silver lining of reducing America's obesity rate. This has the potential to significantly improve public health since obesity, which is widely believed to be one of the leading causes of preventable deaths in the U.S., can lead to a number of diseases, such as heart disease and diabetes. I find that a $1 increase in real gasoline prices will, in the long run, lower the prevalence of obesity in the U.S. by about 1/3 and save approximately 40,000 lives and $40 billion per year. I also find direct evidence that this effect occurs through increasing low-intensity exercise, such as walking. Additionally, I estimate that 3-8% of the rise in obesity in the U.S. between 1979 and 2004 can be attributed to declining real gas prices during the period.

My Big Scene With Marina: So I finally had my 2 lines which turned out to be the opening dialog to the big climax of the film. It was camera . . . sound . . . and ACTION, with me then grabbing Marina by her arm and telling her not to do what she is intending to do, and she turns to me to tell me why she is going to anyway, I question her explanation, and she then gives me another speech, stands speaks, and all hell breaks loose in the courtroom. We did it quite a few times because there was a lot of confusion about how the scene would be blocked. It took hours to figure it out. During my scene, no one ever came in between takes to tell me to do it differently so it must have been acceptable. Most everyone seems to assume I must be an actor in addition to being a lawyer or I wouldn't be in the film. I suspect it was a bit easier for me to act this part in a courtroom where I am comfortable, in a role I played in real life. And I had two days to study how the other actors prepared for their lines. The first time I saw Walter doing it, I thought he was talking on a cell phone. The film won't be out for a long time so I won't be able to see how it went until then. But there is a still photographer taking hundreds of pictures of everything that is shot so I am hoping to get a still of this scene. If I do, I will post it.

Oh yes, and I was interviewed today for the extended features for the DVD about how I came to be doing the film and what legal issues it explores.

In the meantime, I am writing this while waiting for my wife and parents to finish the courtroom scenes they are in. (Someone just came in to say they were ordering pizza so this might run really late.) Its only fitting after they waited around all morning before being called to set that I have to wait for them for hours before going to dinner. When I was still on set, I had to wake up my father before a scene started shooting that he was probably going to be in. And, at an early take of the spectators fleeing the courtroom in terror, my mom was walking out slowly, looking over he shoulder to see what was happening. An actor told me during that take he had seen me waiving at someone to get out of the courtroom and wondered who it could be, then saw it was my parents. Later, he was walking past the video array when he heard one of the crew say, "we need to get the spectators to have more energy" and he saw they were viewing my parents.

All Related Posts (on one page) | Some Related Posts:

Want More Star Trek?
InAlienable Publicity Photo:
Final Comments on My Filming Experience: ...
Day 4: 8:30am Call
My Big Scene With Marina:
Day 3: 8:00am Call: ...
7am Call:
The Cast
On the Set of "Inalienable":

A Series of Posts on Warshak v. United States, the E-Mail Privacy Case: Today's Fourth Amendment decision in Warshak v. United States is astonishing on a number of fronts. If it stands on the books, it will revolutionize the way that Fourth Amendment challenges are brought; it will constitutionalize an area of law long thought to be statutory, invalidating some statutes along the way; and it will create the rather surprising result that Fourth Amendment protections are actually significantly stronger online than in the physical world.

With that said, the caveat "if it remains on the books" is very important here. Whether the panel's view of the Fourth Amendment is right or wrong, Judge Martin had to reach out to decide as much as he did. In so doing, he had to make some procedural moves that strike me as pretty obviously wrong. If the Sixth Circuit en banc corrects the procedural errors, all of the panel's substantive Fourth Amendment holdings will go away.

I think Warshak will be a very good case for en banc review. Indeed, assuming the government petitions for rehearing, I would plan to write a brief urging the en banc court to grant the petition. In the next few posts I want to explain why I think the case is so remarkable, and also very troubling. My plan is to start with the procedural problems, then post on the panel's Fourth Amendment holdings, and then post on the difficulties with the panel's Fourth Amendment holdings.

All Related Posts (on one page) | Some Related Posts:

Sixth Circuit Grants Petition for Rehearing En Banc in Warshak v. United States:
Warshak Files Reponse; Sixth Circuit Rejects All Amicus Submissions:
My Amicus Brief in Warshak v. United States:...
The Facts and Injunction in Warshak v. United States:
A Series of Posts on Warshak v. United States, the E-Mail Privacy Case:
Sixth Circuit Blockbuster on E-Mail Privacy:
Warshak v. United States:

"Radical" Attitudes About Protection for Religious Speech:

A commenter writes,

A survey of Muslims in Britain (Patrick Basham, NRO Online, Aug 2006) revealed that attitudes many would consider radical are in fact widely held in the British Muslim community. For example,

"When asked if free speech should be protected, even if it offends religious groups, 62 percent of British Muslims say No, it should not."

The Islamic Revolution is seeking conquest and subjugation of the world, and offering no respect for the lives of those who disagree with them. The "Religion of Peace" line is ludicrous propaganda.

I am certainly troubled by the finding that 62% of British Muslims conclude that free speech should not be protected if it offends religious groups. (I haven't yet gotten a copy of the survey, but I'll assume for now that it is sound.)

At the same time, opposition to protection for offensive religious speech — at least such religious speech in public places (I don't know whether the British Muslim survey expressly asked about this) — is unfortunately not "radical" in the sense of being far from the mainstream. When asked from 2000 to 2006 whether "People should be allowed to say things in public that might be offensive to religious groups," 42% to 53% of American respondents — overwhelmingly non-Muslims — said no. In the surveys, 27% to 38% said they "Strongly disagree" with the pro-religiously-offensive-speech position. Only 22% to 31% strongly agreed (though fortunately the mild agreers consistently exceeded the mild disagreers).

Now it may well be that British Muslims would endorse broader restrictions than Americans would. And 62% is higher than 42% to 53%. Nonetheless, I think it's a mistake to assume that the 62% number itself illustrates "radical" attitudes on the part of British Muslims. Unfortunately, it represents attitudes that are shared by many non-Muslims in America.

I'd also be curious what the view about protection for religious speech among British non-Muslims would be. British law generally offers less protection for offensive speech than American law does, and it's possible that Britons generally oppose protection for religiously offensive speech more than Americans would (though the opposite is also possible, perhaps because of greater secularism among non-Muslim Britons than among Americans). If anyone can point to data on general British sentiment to free speech as opposed to British Muslim sentiment, I'd love to see it.

UPDATE: I just got a copy of the survey of British muslims, and it reports not only that 62% of British Muslims generally disagreed with "Free speech even if it offends religious groups" (31% agreed), but 78% supported the position "Punish the people who published the cartoons" (15% disagreed), and 68% supported the position "British people who insult Islam should be arrested and prosecuted" (23% disagreed). So the support for some specific restrictions on religiously offensive speech among British Muslims may be even higher — but it may well be that support for some specific restrictions on religiously offensive speech among Americans (or Britons generally) may be higher, too.

Related Posts (on one page):

"Radical" Attitudes About Protection for Religious Speech:
Islam, Religion of Peace?

Janet Reno and Ritual Abuse:

I knew, vaguely, that Janet Reno had prosecuted a couple of absurd ritual sex abuse cases when she was a Miami prosecutor, most notoriously the Country Walk case. I also knew that as Attorney General Reno was responsible for the gross mishandling (at best) of the Waco situation, resulting in dozens of deaths, and that at one point the FBI had supposedly (incorrectly) reported to her that the Branch Dividians had engaged in systematic abuse. I never put two and two together, but others have. For example, in Satan's Silence: Ritual Abuse and the Making of a Modern American Witch Hunt (highly recommended, btw), the authors note: "Amid the national soul searching and congressional probes that followed [Waco], there was only the barest mention of Reno's history of seeming obsession with child sex abuse--an obsession that, in Miami as in Waco, ended with children themselves being severely damaged and even destroyed in the name of protecting them."

UPDATE: I should note that I don't know what effect the allegations of abuse at Waco had on Janet Reno's decisionmaking. Rather, I've been reading up on the ritual sex abuse cases of the 80s, and have noticed that several authors who have studied Reno's work as a prosecutor have drawn the connection.

AutoAdmit Story on NPR:

I'm briefly on NPR's All Things Considered this evening at 5:20 Eastern, talking about the AutoAdmit story. (I have no information about when it will run in other time zones.)

Related Posts (on one page):

Islam, Religion of Peace?

Doubtless as practiced by many, but not as urged by Pakistan's Religious Affairs minister, or Iranian members of parliament. From the Times Online:

Britain's decision to award Salman Rushdie a knighthood set off a storm of protest in the Islamic world today, with a Pakistani government minister giving warning that it could provide justification for suicide bomb attacks.

[Rushdie] has lived under police protection since the late Ayatollah Ruhollah Khomeini of Iran pronounced a fatwa (death sentence) on him over alleged blasphemies against Islam in his 1988 novel The Satanic Verses.

Today, Pakistan's religious affairs minister suggested that the knighthood was so grave an offence that any Muslim anywhere in the world would be justified in taking violent action.

"If somebody has to attack by strapping bombs to his body to protect the honour of the Prophet then it is justified," Mr ul-Haq told the National Assembly.

The minister, the son of Zia ul-Haq, the military dictator who died in a plane crash in 1988, later retracted his statement in parliament, then told the AFP news agency that he meant to say that knighting Rushdie would foster extremism.

"If someone blows himself up he will consider himself justified. How can we fight terrorism when those who commit blasphemy are rewarded by the West?" he said....

Well, how can we count on you to fight terrorism when you start by saying terrorism is justified, and then try to coerce our actions by threatening terrorism from your coreligionists?

Iran has also condemned Rushdie's knighthood, with hardliners issuing calls for his murder today. Mehdi Kuchakzadeh, a Tehran MP, declared: "It would be a hollow dream for the Queen of England to think that with such an action she could revive one of her mercenaries to oppose Islam... Rushdie died the moment the late Imam (Ayatollah Khomeini) issued the fatwa."

Backed by the Government, the Pakistan parliament today voted unanimously in favour of a resolution calling on Britain to withdraw the proferred knighthood because it is an insult to "the sentiments of Muslims across the world" and created religious hatred....

And what about the possibility that Muslim politicians' calls for murder and praise of terrorism is causing religious hostility, and even well-justified religious hatred for their fascistic brand of Islam? (I use "fascism" advisedly here, and I believe correctly.) "Sher Afgan Khan Niazi, the Minister for Parliamentary Affairs who proposed the resolution, called Rushdie a blasphemer. 'Every religion should be respected,' he told the National Assembly." No, not your version of your religion: That should get no respect at all.

From later in the article:

Dr Muhammad Abdul Bari, the Secretary-General of the Muslim Council of Britain, today added his voice to the chorus of disapproval of the knighthood. "Salman Rushdie earned notoriety amongst Muslims for the highly insulting and blasphemous manner in which he portrayed early Islamic figures," he said. "The granting of a knighthood to him can only do harm to the image of our country in the eyes of hundreds of millions of Muslims across the world. Many will interpret the knighthood as a final contemptuous parting gift from Tony Blair to the Muslim world."

I would think more highly of Dr. Bari if he also made, alongside this, the following statement to the world's Muslims:

Those who call for Rushdie's murder earned notoriety amongs Westerners for the highly immoral and contemptible manner in which they have acted. The repetition of this call can only do harm to the image of our religion in the eyes of hundreds of millions of people across the world. Many will interpret the renewed calls for his death as another contemptuous gift from the Muslim world to those whose good opinion Muslims claim to seek.

If he has made such statements that weren't reported by the media, please let me know about them so I can properly report on them. Likewise, I would like to praise Muslim leaders who condemn the renewed calls for Rushdie's death, and the use of threats of Muslim terrorism as an attempt at coercion -- please e-mail me pointers to such praise, so I can give it proper credit.

Meantime, many thanks to the Queen and her advisors on this. There are times to be politic, and there are times to speak out in defense of what we believe -- religious freedom and resistance to would-be religious murderers -- even when restating our beliefs can rankle the sentiments of others.

Thanks to InstaPundit for the pointer.

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Day 3: 8:00am Call: I am typing this at counsel table on the set as the crew prepares for the first scene. Because there are no cameras in front of me, it just feels like waiting for court to begin in the morning. Today my wife and parents are here to be background in the courtroom. We film the last day of the hearing that is the climax of the film. And today I have my 2 lines. Because they are a critical part of the climax, I think they are likely to survive the editing — if I deliver them all right.

Some commenters have asked me to elaborate on my observation that most of the actors have wanted to talk politics with me, which remains true. I don't want to identify individual comments, but its no difference than academia, so I am pretty used to their tenor. You can fill in the blanks. Whether in the Cook County State's Attorney's Office or law teaching, I avoid talking politics with co-workers. There is an expression, "You don't sh** where you eat." And I do not feel any moral obligation to "correct" opinions I may feel are wrong simply because the speaker happens to be in my vicinity. I prefer to express my views in writing, whether my scholarship or blogging--especially with people I've just met.

Having said this, I did allow myself to get sucked into some substantive discussions, not so much about policy (e.g. national health care), but the justice system (e.g. Alberto Gonzeles). One actor told me he wants to produce a series for the History Channel on the landmark Supreme Court cases throughout history, which I think would be a really good idea. I will also say that Marina Sirtis with whom I am spending many hours together every day at counsel table during and in between takes is tremendously engaging, as well as remarkably forthcoming. (She was a frequent guest on HBO's Politically Incorrect.) She is nothing like her Deana Troi character--i.e. quiet and calm--which she said was very hard for her to play because it was so unlike her normal demeanor. She is quite outspoken on the set about how things are being done but seems to assert herself only when appropriate. Without any prompting from me, she is also telling me a lot about "the business" as well as about Star Trek goings on. And I see she is wearing stiletto heels today.

We're getting ready to start, so I should post this while I can.

Update: So later in the day, pretty much the only cast member I had not spoken with volunteered that he was a Republican and big Second Amendment advocate. Oh yes, and the editor is an anarcho-capitalist.

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Sixth Circuit Blockbuster on E-Mail Privacy: In an earlier blog post on a pending case in the Sixth Circuit, Warshak v. United States, I figured there was no way the court would get to the merits of the Fourth Amendment issue lurking in the case: there were no facts yet and no decided statutory law, and surely the panel wouldn't be so reckless as to presumptively strike down a federal statute in the absence of facts or law given the procedural problems with the case. I had a funny feeling things would turn out differently when I learned who was on the panel, though, and that funny feeling turned out to be justified: the panel just issued a blockbuster decision that tries to answer how the Fourth Amendment applies to e-mail (all without any facts, amazingly) based on arguments from amicus briefs that the government didn't address all in the context of an appeal from a preliminary injunction. Wow. More on the decision later today.

UPDATE: Here's the key part of the opinion:

[W]e have little difficulty agreeing with the district court that individuals maintain a reasonable expectation of privacy in e-mails that are stored with, or sent or received through, a commercial ISP. The content of e-mail is something that the user “seeks to preserve as private,” and therefore “may be constitutionally protected.” Katz, 389 U.S. at 351. It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past. See Katz, 389 U.S. at 352 (“To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.”)

Notably, the court's Fourth Amendent analysis combines aspects of the probabilistic, private facts, positive law and policy model (the above-quoted section being from the policy model section).

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Warshak v. United States:

Why Do People Develop "Religious" Beliefs About Secular Issues?:

This New York Times story related to the debate over the meritless theory that autism is caused by mercury exposure raises a broader issue that has been troubling me lately: why do people develop such strong beliefs about particular things that no amount of evidence, or for that matter common sense, is enough to sway them? Do take one particularly egregious example example, why do millions of people around he world people believe that water can retain a "memory" of materials diluted away, such that homeopathic remedies that may contain no detectable trace of the supposed "medicine" work?

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The Court's Opinion in Brendlin v. California is here, via SCOTUSBlog. Justice Souter's opinion gets it right; the issue is control over the passenger, and a traffic stop controls the passenger as much as the driver.

At least on a first read, I take the Court to hold that the seizure begins when the car comes to a stop. The passenger is seized because most car passengers in a traffic stop wouldn't initially feel free to leave at that point. Justice Souter leaves open the possibillity of a different result with different facts; Footnote 6 suggests that there may be a different result for taxi cab and bus passengers. As a I blogged about before, I tend to think this approach misses the initial brief seizure as the car is coming to rest; I think the passenger is seized in the few seconds when the car is slowing down and coming to rest as much as after the car is stopped, so that even the taxi and bus passenger would be seized for a brief interim even if they would feel free to leave after the car is stopped. But this is only a very minor quibble, and not one that will make a difference in 99.8% of the cases.

Brendlin v. California: The Supreme Court has just handed down Brendlin v. California, the Fourth Amendment case I have blogged about a bunch of times on whether a passenger is "seized" when an officer pulls over the car for a traffic stop. I predicted a 9-0 win for the defendant back in January when cert was granted, and according to SCOTUSblog I was right: Lyle Denniston reports that the Court ruled unanimously in Brendlin's favor in a decision by Justice Souter. I'll add a link to the opinion and analysis of it when it becomes available.

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Slow Justice in Ohio:

Yesterday's Cleveland Plain Dealer featured an extensive article on the increasingly slow pace of decisions at the Ohio Supreme Court. In 2004 it took the Court an average of five months from oral argument to issue an opinion. By 2006, it took an average of seven months.

Chief Justice Thomas Moyer, who is reluctant to talk about the inner workings of the court, acknowledges that the pace has been a rising concern for him and a source of finger-pointing among the justices. But he says it's an issue that he - despite his leadership position - is helpless to control.

"Any justice who has a pattern of taking a longer period of time than others knows the court's concern, they know the chief justice's concern, they know the concern of their colleagues," Moyer said.

"But one thing we have to remember is each of the justices is an independently statewide elected official."

In Defense of Clerkship Bonuses:

This year, hiring bonuses for former Supreme Court clerks at major law firms are expected to reach $250,000. That sounds like an extraordinary and unwarranted sum. In today's New York Times, however, Above the Law's David Lat argues that these gargantuan bonuses may be irrational for individual firms, but good for the legal system as a whole.

even if the astronomical Supreme Court clerkship bonuses may be dubious investments for law firms, they are good news for our legal system. Here’s why: by promising clerks a financial windfall on the back end of their clerkships, firms encourage bright young lawyers — many of whom carry loads of educational debt — to render service to the court and country. The bonuses place clerks in a similar (or superior) position financially to their classmates who went directly into private practice instead of clerking for two years (the first with a lower-court judge, the second with a Supreme Court justice). The bonuses can be viewed as an after-the-fact supplement, paid for by the private sector, to comparatively modest clerkly wages (less than $65,000 a year).

The financial freedom supplied by these bonuses can allow the clerks who decide against a corporate career to move on more quickly to what truly interests them — academia, government practice or public-interest law. Law firms end up in effect subsidizing less wealthy precincts of the profession.

Which of These Are Religious Terms?

From a Friday Washington Post article:

Casting his appeal in religious terms, Bush said, "We must meet our moral obligation to treat newcomers with decency and show compassion to the vulnerable and exploited, because we're called to answer both the demands of justice and the call for mercy."

He added, "Most Americans agree on these principles. And now it's time for our elected leaders in Congress to act.... Each day our nation fails to act, the problem only grows worse. I will continue to work closely with members of both parties, to get past our differences, and pass a bill I can sign this year."

NPR's All Things Considered echoed this the same evening: "The president told the Prayer Breakfast that each day the nation fails to act on immigration, the problem only grows worse, and Mr. Bush used religious terms as he appeal to lawmakers.... [']We must meet our moral obligation to treat newcomers with decency and show compassion to the vulnerable and exploited, because we're called to answer both the demands of justice and the call for mercy. Most Americans agree on these principles — excuse me — and now, it's time for our elected leaders in Congress to act.[']"

Is it really quite accurate to describe this as "us[ing] religious terms"? I would think that nonreligious people would rightly bristle at the implication "moral," "decency," "compassion," "justice," or "mercy" are inherently "religious terms."

The full transcript, if you want it, is here. I didn't see any expressly religious language in the immigration passage, though there are references to God and prayer elsewhere in the speech (it was, after all, given at a prayer breakfast).

UPDATE: Some commenters suggest that all these terms are in context religious terms because they were used at a Prayer Breakfast. But both items already mentioned that this was said at a prayer breakfast; the "religious terms" seems to me to suggest that there was something more explicit about the terms' religiosity (or about the immigration passage more broadly).

On the other hand, some others suggested that "called to" was the religious term, and the "religious terms" was a way of suggesting this. Maybe that explains it, but I'm still skeptical; the passage still strikes me as being the sort of thing that could have been said at an agnostics' convention as easily as at a prayer breakfast, and as the sort of thing that would have pretty much the same meaning at both. Of course, there might be subtle differences in the resonances the terms have based on the audiences' religious beliefs, but pretty subtle, much as "do not kill" -- a far more morally uncontroversial assertion, I realize -- would have different resonances but only subtly different ones when said to a Christian group as when said to an agnostic group.

Merida and Fletcher on Clarence Thomas: In his post below, David mentions Kevin Merida & Michael Fletcher's new biography of Justice Thomas. I recently finished the book, and my take is mixed. The book's first half, which mostly covers Thomas's childhood and family, is pretty interesting. Merida & Fletcher interviewed tons of people, and the book offers lots information on Thomas that is hard to find elsewhere. The book goes downhill in the second half, which is more on Thomas as an adult and as a judge. Merida & Fletcher are not lawyers, and they tend to see conservative legal views as an expression of lack of sympathy for others. As a result, they get wrapped up in questions that will strike sophisticated readers as quite silly (such as, how could Justice Thomas be such a nice guy personally and yet endorse such uncaring views of the law?). Finally, it's worth noting that we'll get Justice Thomas's own take soon: his memoirs will be published in October.

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Merida and Fletcher on Clarence Thomas:
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New Bobby Hutcherson CD: The vibraphonist Bobby Hutcherson is my favorite living jazz musician; his over 40 albums as a leader and another 70 or 80 as a sideman amount to an incredible body of music that is remarkable for its consistently high quality. In light of that, I wanted to flag Hutch's first new studio album in eight years, For Sentimental Reasons, which will be officially released Tuesday on the Kind of Blue label.

  As the title suggests, this is mostly an album of ballads, with Hutch leading a quartet joined by Renee Rosnes on piano, Dwayne Burno on bass, and Al Foster on drums. Hutch's style has gone through many changes over time, and in this recording he made an effort to play in a very pretty and simple style. It's a successful effort; Hutcherson offers some beautiful playing, and his tone is particularly melodic and pure. The vibraphone isn't for everyone, but if you like the vibes it's definitely worth checking out.

  If you're interested in an introduction to Hutcherson's work more broadly, I recommend starting with two of his earlier quartet recordings: Happenings, his classic 1966 Blue Note album with Herbie Hancock, Bob Cranshaw, and Joe Chambers, and In the Vanguard, his 1986 live recording at the Village Vanguard with Kenny Barron, Buster Williams, and Al Foster (originally on the Landmark label, now reissued by 32Jazz). They are two of my very favorite jazz CDs; highly recommended.

  Finally, although there is surprisingly little Bobby Hutcherson on YouTube, there is at least some: check out him playing live recently with his frequent collaborator McCoy Tyner here (with part 2 here).

Consulting Dictionaries Only After "Intrinsic Evidence" Shows Ambiguity:

In a comment on the More on Supposedly "Clear" Texts thread, commenter von writes (in response to my text, which he italicized):

More on Supposedly "Clear" Texts: In the post below, I made a simple claim: You can't tell whether a text is "clear" or "unambiguous" by simply consulting the text — you also need to see whether there is external evidence that the meaning of some term is something other than what you assume it to "clearly" or "unambiguously" be (whether we refer to the meaning intended by the author or the meaning likely understood by most of the author's intended readers). This shouldn't be politically or ideologically controversial. It's just a description of how language and communication works.

A bit off point, but it's worth noting that the process used to construe a patent's claims (the part of the patent that tells you the scope of the patentee's zone of exclusion) *generally* proceeds in the opposite direction: A court looks first to instrinsic evidence -- roughly, the four corners of the patent document + the back and forth with the patent office during the application process -- to construe a claim or claim term. Only if the claim or claim term remains ambiguous does the Court typically consider so-called "extrinsic evidence," e.g., expert testimony, dictionary definitions, and the like.

I say "generally" because different panels of the Federal Circuit have, at times, expressed different views on when and how extrinsic evidence should be considered. The most recent in banc decision on the subject suggests a slightly preferred view of some extrinsic evidence (expert testimony), but doesn't quite elevate it to the level of intrinsic evidence in the claim construction process.

I'm no patent maven, but I wonder whether this can really be so. The commenter lists "dictionary definitions" as "extrinsic evidence" that can only be checked when the "intrinsic evidence" yields ambiguity. But surely the judges construing the patent claims are using their own mental dictionary to determine what the intrinsic evidence means in the first instance. Yet all of our mental dictionaries are incomplete, especially as to technical areas in which we aren't specialists. How could it make sense for a judge to rely entirely on his likely flawed mental dictionary, coupled with what's in the claim and in the back-and-forth with the patent office, and to simply refuse to consult a written dictionary if the possibly flawed mental dictionary gives a supposedly "unambiguous" answer?

Say a judge, using his own mental dictionary, thinks some term is unambiguous, because he's aware of only one definition -- perhaps partly because he's not a specialist in the relevant technical field, and thus doesn't know the field's technical definitions. A litigant comes and says "No, wait, look at this dictionary [either a general dictionary or a scientific dictionary], which lists this other definition, which is the definition that I and the patent examiners used, though we didn't mention it in the patent because we took it for granted."

Would a judge really say, "nope, I may not be a specialist in computers, but I think the term 'dump' unambiguously means 'throw out' [which is to say, it unambigously means 'throw out' in my own mental dictionary], so I'm going to refuse to consider a computer science dictionary, even though you claim it gives an alternate definition"? If so, how is this remotely sensible?

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Consulting Dictionaries Only After "Intrinsic Evidence" Shows Ambiguity:
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What Does "Free State" Mean in the Second Amendment?

Clarence Thomas and "Affirmative Action":

A New York Times book review by Orlando Patterson gives us the following biographical details on Justice Thomas:

Pin Point, where he spent his first six years, comes as close to a scene of rural desolation as is possible in an advanced society. This is black life in the rural South at its bleakest, in which the best hope of the law-abiding is a job at the old crab-picking factory. It is in this sociological nightmare that a 6-year-old boy, by some miracle of human agency, discovers the path to survival through absorption in books. Born to a teenage mother, abandoned by his father when he was a year old, plunged into the even more frightening poverty of the Savannah ghetto, Thomas, along with his brother, was eventually rescued by his grandparents.... Coastal Georgia is one of the few areas in America where a genuinely Afro-English creole — Gullah — is used, and Thomas grew up speaking it.

Let's take race out of the equation for a moment, and take a white person with a similar background: born to a teenage mother, abandoned by the father, grew up in desolate rural and urban environments, grew up speaking creole dialect instead of standard English, raised by an illiterate grandfather... does anyone seriously doubt that such an individual should be given a break on, say, LSAT scores, in admission relative to the typical Yale Law student? (At least when I was there, the prototypical Yale Law Student grew up in either Manhattan or a well-to-do suburban area, attended a fine, often private, high school, had professional parents, often big-shot lawyers, and spent a bunch of money on Princeton Review or Kaplan to prepare for their LSATS; a fair fraction of my classmates had been planning their law school careers, and in some case political careers beyond that, since at least high school--one woman I met, whose family has donated millions to elite universites, said "I knew I was going to Harvard or Yale from the time I was three years old.").

So if Thomas doesn't attribute his getting into Yale to racial preferences, as the review contends (I'm not sure this is true), you can't blame him. ANY sensible admissions policy would have admitted someone of his background who had achieved the successes he had achieved, regardless of race.

Though I hate to sound like a leftist, to a large extent schools like Yale Law both create and perpetuate the advantages of the elite. Engaging in race-based affirmative action puts a fig leaf of egalitarianism on the whole thing, which allows the overwhelmingly liberal members of the elite to feel good about themselves, while still overwhelmingly giving new advantages to folks of already-advantaged backgrounds.

Put another way, Thomas may be an affirmative action success story, but if so, it damns the schools for not looking much harder for Clarence Thomases of all races.

BTW, I don't recommend the review itself, which has too many cliches and inaccuracies--e.g., at least on the mainstream political spectrum, Rush Limbaugh isn't "far right," he's a rather standard-issue conservative; Thomas did not say, as Patterson claims, that "beating a prisoner is not unconstitutional punishment because it would not have appeared cruel and unusual to the framers," he said that extralegal beatings are not "punishment" within the meaning of that word in the 8th Amendment, and that they may violate other constitutional provisions; and so on.

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Merida and Fletcher on Clarence Thomas:
Clarence Thomas and "Affirmative Action":

Day 2: 7:30am Call: Got to the studio today to find out that I now had my own trailer dressing room. The assistant director said I must have done well yesterday, but the truth is that yesterday we had 4 name actors playing expert witnesses, each of whom had a trailer, so today there are trailers to spare.

As I sit at counsel table on the set, I thought I would blog a bit about technical advisers. I was not included as a technical adviser but the director, cast and crew are using me as one. There is very little about this hearing on a petition for a writ of habeas corpus that is realistic. What input I have on what remains is so obviously constrained that I hesitate even to raise obvious objections. Yesterday we filmed the cross examination of an expert witness in which the petitioners objected to leading the witness. Leading the witness is perfectly proper on cross examination. But (1) the actors had prepared for these lines (I had corrected a previous version of the script in many ways, but the original version was eventually restored.) (2) The actor playing the witness was having problems with some very long complicated lines (and eventually got one completely wrong), and most importantly it was the end of the day, everyone was tired and we were overtime. Even though this could easily have been fixed--just overrule rather than sustain the objection--I knew there was NO WAY any changes would be made. Still out of a feeling of professional obligation I spoke with the director about it and his response was, "We can live with this." True enough. And he has asked me for advice numerous times. This morning he said, "I'm going to do this anyway, but would it be OK if . . . ." Turns out what he wanted to do was perfectly all right, but his preface was still funny. I told him he was like a law school dean. "I am going to do this anyway, but I just want your input."

On the other hand, Eric Avari who is playing the petitioner's lawyer asked me about a bit of dialog in which he gives a long statement of facts before asking a question. He wanted to know if a lawyer would really to that. I told him he was summarizing the testimony of another witness for this witness to assume for purposes of rendering an opinion. All he had to do was preface his dialog with "It has been testified that . . . " and it would make perfect sense. That's just what he did.

Marina is a big Law and Order fan so she has a decent legal sense and is raising good questions about her dialog. I don't watch the show but it must be legally decent because she seems to have a legal background. I told her she should go for a part on Law and Order now that Fred Thompson is off the show. She's the perfect age and look for the part and has a lawyerly demeanor, she should submit the film of her scenes in this film. I just told her what I was blogging about and asked her if she would do it, and she said she will.

We're starting the scene now. I am in this shot, if only out of focus behind Marina. So I better go now.

Update: We just finished doing 5-6 takes of yesterday's scene only this time facing Marina (and counsel table) when she is questioning the witness. I know I am on camera because they touched up my make-up in between takes and the make-up person told me I was in the beginning of the shot. (So the make-up is a clue.) When we were all done, Marina said, "See they took your note. They overruled the objection." Assuming it was still wrong, I had paid no attention to what the judge said today in response to the objection. And because the camera was on Marina at this point, this is the take they are likely to use. I have to admit, I was pretty surprised.

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InAlienable Publicity Photo:
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Day 3: 8:00am Call:
Day 2: 7:30am Call:
Shooting the First Scene: ...
7am Call:
The Cast
On the Set of "Inalienable":

Sunday Song Lyric: What would make a good Sunday Song Lyric for Father's Day? How about "Father Knows Best," by Ricky Skaggs? I am not the biggest country music fan, and I don't know too many of Skaggs' songs, but it is hard not to be impressed by his commercial and artistic success. "Father Knows Best" appeared on Skaggs' 1991 album My Father's Son. The song was written by Lenny LeBlanc and Mike Curtis. Here is a taste of the lyrics.

Daddy told me not to ride my bike across that rocky creek
You know it's swift in places and son it's pretty deep
But hardheaded full of pride I went on anyway
And if daddy hadn't been watchin' me I wouldn't be here today.

Father knows best, father knows best
If he hadn't been lookin' out for me I'd be in such a mess
I swore from then on I would do just what he said
'Cause father knows best, father knows best.

Saturday, June 23, 2007

Friday, June 22, 2007

Thursday, June 21, 2007

Wednesday, June 20, 2007

Tuesday, June 19, 2007

Monday, June 18, 2007

Sunday, June 17, 2007