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.
Saturday, June 23, 2007
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."
Friday, June 22, 2007
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?
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.
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....
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.UPDATE: My apologies -- this story is not in The Onion, but rather the New York Times. I regret the error.
[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.
Related Posts (on one page):
- Wash Post Profiles Influential Legislator:
- Vice Presidency in the Legislative Branch for Purposes of Executive Oversight, OVP Claims:
Thursday, June 21, 2007
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.
Hat tip: Above the Law.
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?
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).
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).
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."
Related Posts (on one page):
- 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.
Related Posts (on one page):
- Prediction of Likely Newspaper Error Comes True:
- Conservative vs. Liberal Justices on Speech and Undue Influence:
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.
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 IBoughtTylersBook@gmail.com 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....
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.
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.
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:
- 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 Procedural Errors of 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:
Wednesday, June 20, 2007
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.
Related Posts (on one page):
- More on Breaking into Appellate Law, from a Sole Practitioner Appellate Lawyer Friend of Mine:
- 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:
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.
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?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.
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.
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:
- 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 jud