Redemption for Iowa’s Supreme Court?

In the midst of the uproar surrounding the Supreme Court’s recent decisions, I nearly missed the news that a different Supreme Court is taking action that is worthy of some attention.  Via How Appealing, I learned of Ryan Koopmans’s post at On Brief.

When the California Supreme Court and Ninth Circuit affirmed the decision of the Northern District Court of California that Proposition 8 was unconstitutional, I was not as vocal in celebration as some of my classmates who were natives of California.  I had just come from Iowa, so I was already used to gay marriage being legal (I had a similar experience with the fierce debate surrounding the failed attempt to eliminate California’s death penalty).  By the metrics of most of my friends, Iowa was ahead of California in a number of important respects – and I made sure to constantly remind them of this fact.

My enthusiasm in Iowa’s progress was dampened, however, by the tendency of the state to take steps backward as soon as it had moved forward.  The legalization of gay marriage was met with the expulsion of three of Iowa’s Supreme Court Justices during their retention election.  But in an action that went beyond popular backlash, the Iowa Supreme Court proceeded to tarnish its own reputation in the case of Nelson v. James H. Knight, DDS, P.C.

In Nelson, the Iowa Supreme Court held that it is not a violation of the Iowa Civil Rights Act to fire an employee because the employer feels personally attracted to the employee.  Even if the employee would not be fired but for his or her gender, there is a difference between sex-based termination and termination based on a personal attraction.  While I am no expert on the Iowa Civil Rights Act, the decision raised some red flags to me because it seemed to put employees’ security at the whim of employers’ sexual desires.  Furthermore, employers could claim a personal attraction as a false justification for firing employees on the basis of sex and it is not clear how the employee would be able to disprove the claim of attraction.

This decision made national news and was met with wide ridicule, even all the way out here at UCLA Law.  My Iowan ancestry, once my claim to fame, became a source of shame.  It is because of all of this that I am happy to see that the court has agreed to rehear the case.  I hope that the Iowa Supreme Court decides the case differently so that I can once again belittle my Californian friends by asserting Iowa’s jurisprudential superiority.

Apology: Delayed Case Postings

Due to clerkship applications, I have been unable to read through the recent Supreme Cases.  Fortunately, Friday is the big day, according to this new Plan, and once I am through with applications I will get to the cases.

Cases that I hope to explore (or that I at least find interesting) - and interesting takes that I have seen on them include:

Fisher v. University of Texas.  Posts that I have found interesting include Richard Sander's, Stuart Taylor's (via David Bernstein), and Jack Balkin's.

Descamps v. United States.  I found Will Baude's post interesting.

Alleyne v. United States.  Mike Gottlieb posts about it at SCOTUSblog.

Koontz v. St. Johns River Water Management District.  Ilya Somin of the Volokh Conspiracy posts about the case here and here.

Shelby County v. Holder.  I haven't had nearly enough time to sort through the case and its reactions, but Joey Fishkin posts on the case here.

United States v. Kebodeaux.

Salinas v. Texas.  Orin Kerr posts about it here.

Agency for International Development v. Alliance for Open Society.  Michael Dorf posts about it here.

Hollingsworth v. Perry and United States v. Windsor.  While the case has not been released at the time of this post, there are already reactions in all directions, but I will leave the sorting of the legal blogosphere's reaction to a time after the opinions are released.

Fox News Sued for Distress Caused by On-Air Suicide

BBC reports on a lawsuit filed by the family of a man who shot himself at the end of a car chase broadcast by Fox News is suing the network for infliction of emotional distress that arose from viewing the broadcast.

This suit initially seems related to negligent infliction of emotional distress (NIED) (which I posted about in the context of exam grades here.)  I find it difficult to fit this lawsuit into the NIED category, however.  The news-public relationship does not seem to be a relationship that is likely to cause severe harm or distress if the newscaster acts negligently (as opposed to, say, an undertaker who misidentifies a body and cremates it.)  Additionally, this does not seem to fit into the category of bystanders suing for NIED because Fox News did not cause the act that resulted in the harm.  This is different from, say, Scherr v. Hilton Hotels Corp., 214 Cal. Rptr. 393 (1985) a case where plaintiff argued (unsuccessfully) for NIED when the plaintiff saw a live broadcast of a hotel fire where her husband died.  In that case, the plaintiff was suing the hotel, not the news agency, because it was not the news agency that caused the harm that in turn caused the emotional distress.

Here it is different -- the plaintiff is focusing her efforts on the news agency that broadcast the suicide of the father of her children.  It probably would not be sense to sue the most direct cause of the distress -- the man himself -- since he is dead.  The question becomes whether the medium that communicates the distressing event can be sued, that is, whether the plaintiff can sue the messenger.

There is the possibility that the plaintiff may still have an argument for emotional damages caused by general negligence.  After all, negligent infliction of emotional distress is a separate claim that tends to accompany arguments for negligence.  If the plaintiff can argue that Fox News was negligent in reporting this suicide, the plaintiff may be able to claim damages for emotional distress.  It is not clear whether the plaintiff is pursuing this theory, since the article indicates she is suing for "infliction of emotional distress."

This strategy is not foolproof however.  Under the Hand formula for negligence, the plaintiff would need to argue that the precautions that Fox News could have taken to prevent her distress would have been less costly than the harm she suffered multiplied by the probability of this harm.  Fox News would have a strong argument that there was a low probability that a person in a car chase would shoot himself.  On the other hand, many news agencies delay their broadcasts by a few seconds, so there may have been low-cost measures Fox News could have taken to avoid harm.

On yet another hand, however, this seems to raise interesting questions about the live broadcasting of disasters or terrorist attacks.  If Fox News were to report on a story more newsworthy than an exciting car chase, say an ongoing terrorist attack, and if this story were to show victims being killed, could the families of the victims sue Fox News for infliction of emotional distress?  This lawsuit intuitively seems less meritorious, and this intuition may be bolstered by recognizing that altering the coverage of events like terrorist attacks may have a much higher cost than altering the coverage of car chases.  Calculating these comparative costs seems to require some determination of the newsworthiness of events as measured by the costliness of altering the coverage of the events - a task that seems to be quite difficult.

Passenger Standing After United States v. Jones

This will probably be the last of my overly frequent posts about United States v. Jones, 132 S. Ct. 945 (2012) (for a while at least), since I will be finished with arguing a similar case by the end of the day tomorrow.  The final aspect of Jones that I would like to mention is one that I will probably pursue in a more formal matter since a quick perusal of articles on Jones and the Fourth Amendment do not seem to touch much on this.  That issue is: the state of vehicle passenger standing to challenge Jones-based searches.

Standing to challenge searches is already in a funny state when it comes to vehicles because of the Court's holding in Rakas v. Illinois, 439 U.S. 128 (1978) where the Court held that a passenger in a vehicle had no standing to challenge a police search of a locked glove compartment and under the front seat of that vehicle. The Court held that the defendant, as passenger, failed to show a legitimate expectation of privacy in that vehicle.

The legitimate expectation of privacy that Fourth Amendment standing involves is different from reasonable expectations of privacy that dominate traditional determinations of whether a search exists in the first place.  For instance, in Minnesota v. Carter, 525 U.S. 83 (1998), the Court held that guests in a house who are not overnight guests do not have a legitimate expectation of privacy in that house, and therefore do not have standing to challenge a search of that house as a violation of their Fourth Amendment rights.  The guests in the house likely expected that police would not intrude on their activities, and society probably would have found this expectation reasonable, since they were inside of a friend's house with the blinds (mostly) shut.  Despite this, any expectation of privacy they had was not legitimate.

Jones seems to introduce an entirely new way of analyzing standing: a test of whether the defendant has a possessory interest in the place searched.  In cases where the defendant asserts that police action would have constituted trespass at common law, the action is a search under Jones.  It would seem to follow that the only person that would have standing to challenge the search would be the person whose possessory interest is violated by the trespass.  For instance, I would not be able to challenge a search of my friend's house, under Jones, since I do not have a possessory interest in that house.  While I may have a legitimate expectation of privacy under Carter, that goes beyond the property-based rule that Jones establishes.

Usually, this will not be a big deal, since the legitimate expectation of privacy test will often lead to standing in situations where there is no trespass on the defendant's possessory interests.  It will be a big deal, however, in situations like the one in Jones: GPS monitoring of vehicles.  Passengers of vehicles that are tracked by attached GPS devices will probably not be able to challenge this type of search under Jones because the passenger has no possessory interest in the monitored vehicle.  Additionally, the interior of the vehicle is not searched -- typically only the public movements of the vehicle are tracked -- meaning that the passenger would be hard-pressed to argue from the legitimate expectation of privacy direction.  Jones did not address standing issues, but it did note in a footnote that Jones was the exclusive driver of the vehicle, indicating that he had a possessory interest that would have given him standing had a standing challenge arisen.

Admittedly, this class of searches may be a narrow one, but it illustrates the interesting new dimension that Jones brings to Fourth Amendment standing.  While traditional standing analysis involving legitimate expectations of privacy may involve fuzzy tests, Jones may be a bit clearer since parties need only look to property law to see if any possessory interests in searched property exist.

Hafetz on Criminal Law Principles Applied to AUMF Detentions

Over at Balkinization, Jonathan Hafetz posts about his upcoming article in a delightful legal periodical.

I recommend this article to anybody who is following events at Guantanamo and who is interested in the implications of President Obama's speeches and policies on the subject.  As somebody who is far more interested in the principles underlying criminal law than the intricacies of national security law and laws of war, I found Hafetz's explanation of these varied concepts approachable, and his blending of these fields to be deft and enlightening.

"Street Cred": An Important Argument with Unnecessary Problems

CrimProf Blog notes that Montré Denise Carodine recently posted to SSRN "Street Cred," an upcoming article in Volume 46 of the UC Davis Law Review.  Here is the abstract:

The killing of unarmed teen Trayvon Martin by a neighborhood watch captain and the purported lackadaisical response to that killing by the Sanford, Florida Police Department riveted the country and sparked an important conversation regarding the breakdown of the relationship between the police and the communities that they serve. Regardless of one’s opinion on what happened the night that Martin was killed, it is undeniable that this entire case has jeopardized the already fragile relationship between law enforcement and not only the Sanford community, but communities across the nation. This Essay considers the effect of the dysfunctional relationship between the police and the communities that they serve on the perceived reliability of the evidence that police provide in our criminal justice system on a daily basis. The evidence rules, which are particularly crucial in criminal cases, should reflect the reality of public perception of law enforcement. I propose that communities call for and legislatures implement a moratorium on the admissibility of certain types of law enforcement testimony in communities with strong levels of distrust of the police. And, in turn, when confidence in the credibility of law enforcement is restored, which is the ultimate goal of this Essay, the evidentiary regime can and should then reflect a new reality and take the opposite approach. The rules of evidence should incorporate a community policing approach to the admissibility of police testimony. 

My approach is novel, as criminal law and evidence scholars have not considered the importance of the community in assessing evidentiary reliability. But we should rely on the community to adjudge police credibility and the evidentiary value of their testimony. This approach is superior to relying solely on prosecutors, judges, and the police themselves. My proposal will help to restore the public’s trust in law enforcement, which is at an all-time, critical low.

My initial comment on this article is that it should not be dismissed -- especially not by those who are particularly prosecution-minded.  My first reaction to the thesis after reading the abstract was one of incredulity.  Excluding all law enforcement testimony from certain cases?  My initial impression was that the article would seem credible only to those who already hold these strong views, and would seem completely incredible to all others.  As I read the article, however, I found a great deal of interesting discussion on community perspectives of law enforcement and specific strategies that law enforcement agencies can take to repair broken relationships with an untrusting public.  The problem of distrust and the solutions the author presents in Part II make this article worth reading, even by those who disagree with the author's ultimate proposal.  The perspective is important, and the problem is real; it is of social importance to reformers and of strategic importance to prosecutors.  The article does have its problems, which I discuss after the jump, but I think that Part II is certainly worth reading.

However,

Fun News Activity: Spotting Partisan Views on Privacy

A few days ago, Eugene Volokh posted a response to this Reason article.  The Reason article advances the intuitively-appealing notion that those who express opinions on the NSA's data-collection efforts tend to have their opinions colored by their political ideology.  The article contends that Democrats who disagreed with President Bush's data-collection efforts now agree with President Obama's use of similar efforts because President Obama is a Democrat.  The article further argues that the same principle holds true for Republicans, with those agreeing with President Bush's strategy now expressing critical opinions of President Obama's surveillance policies.

Professor Volokh takes issues with the article's basis for these claims, noting that the difference in poll outcomes shows that many Democrats and Republicans have in fact maintained consistent opinions and that in the time between these polls people may have changed their minds for non-political reasons.

While I agree with Professor Volokh's interpretation of the article -- this interpretation holds room for the conclusion that a small percentage of Democrats and Republicans do fit the model of the blind partisan who is willing to change his or her views depending on the party in power.  This gets us to the fun news activity.

Many news programs hold panel discussions and interview pundits on the subject of the NSA's surveillance efforts.  Most of these pundits fall outside of the blind partisan model, with Republicans focusing their points on criticizing Edward Snowden, the contractor who leaked the description of the program to the press.  Democrats tend to criticize the program, often noting its origins in the Bush administration.  The pundits who tend to stick to their policy positions seem to be those who are more established on networks and who make regular appearances.

Despite this general trend, it is especially fun to see those pundits who fit into the blind partisan model described by Reason and who, through a series of mental gymnastics, misleading appeals to the Constitution, and overbroad labels of "legality" shape their support or criticism of the NSA to fit with their partisan identifications.  The pundit who does this is typically a more fanatical and less substantive contributor to the discussion, and these folks tend to be those who appear less regularly on news programs.  Flags that indicate partisan-conformity efforts include, most obviously, the party affiliation of the speaker (for example, if that speaker is a current or past senator or representative, their party label is indicated by the network).  Other signs to look for include broad appeals to the Constitution or law, overly simplistic claims of legality, shifty eyes, stammering, or overuse of introductory phrases like "well, as a matter of fact."

When you find the partisan, I recommend that you listen carefully to their arguments and see how the normative bases of these arguments square with their other talking points on the program.  Also look carefully if they make eye contact with the program's host or with the camera and see if you can catch a glimpse of how uncomfortable they really feel.  It is easier to spot than you'd expect.

Justice Stevens on Maryland v. King - Illustrating the Importance of Remaining Questions

On Friday, Retired Supreme Court Justice John Paul Stevens spoke at the American Constitution Society National Convention.  His speech is here.  In the final part of the speech, Justice Stevens says that he probably would have voted in the majority of the Maryland v. King opinion -- where the court decided that the taking of DNA swabs from people arrested for serious offenses is a permissible search.  (I discussed this opinion further here).

Justice Stevens emphasizes that even if Justice Scalia's dissent is correct and the search was really done for investigatory rather than identification purposes, this would not be the end of the inquiry.  Justice Stevens accurately emphasizes the limited information that DNA swabs reveal, since Maryland's statutory safeguards prevented broader use of the DNA to determine other information such as physical characteristics of the arrestee.  Additionally, Justice Stevens notes the limitation on the scope of DNA collection, since only the DNA of arrestees who are suspected of crimes would be collected, and he notes the public interests that would be served by a DNA database, including guarantees of more accurate identification and the deterrence value of the database.

It's important that Justice Stevens emphasized this point, because it seemed that Scalia had a very good argument that the purpose of the statute was investigatory rather than for purposes of identification.  I think that Justice Stevens's first point about the limited information that DNA swabs reveal is the most important of his various arguments in favor of the outcome.  The King decision's basis in the identification purpose of the statute leaves open questions about whether the DNA search is so intrusive that it is unreasonable.  A similar point was left open by the Court's opinion in United States v. Jones, 132 S. Ct. 945 (2012) where the Court held that installing a GPS monitor on a suspect's car was a "search" under the meaning of the Fourth Amendment, but noted that the government had forfeited any arguments about whether that search was "reasonable."

Both King and Jones leave open the question of whether the searches involved in each case is reasonable.  King bypasses the issue by relying on the alternate purpose of identification rather than investigation -- an alternate purpose that skews any balancing in the favor of the government.  These issues may come up again in the future case that the Court will eventually need to hear when a defendant arrested for a non-serious offense has his or her DNA collected by the arresting agency.  More questions like this will also arise when there are states with fewer statutory safeguards than the Maryland statute provided.  In these different scenarios, the Court may find that the purpose of the statute is indeed investigatory, or the Court may find that this purpose is not enough to overcome other questions of search reasonableness.  When the debate arrives here, I think that there are strong and interesting arguments on both sides (though I am inclined to side with Justice Stevens opinion on the issue).  Justice Stevens's speech, whether you agree with his points or not, illustrates the importance of continuing questions in cases decided in areas of complex doctrine, where clarification of one area of the law does nothing to address other areas.

Finally, a detour through Jones: the lesson of Justice Stevens's emphasis of remaining questions applies most strongly to cases like Jones.  Searches in Jones, however, are clearly investigatory, and only future cases (like the one I will be arguing on Thursday) will decide which of these searches are reasonable or unreasonable.  In Jones, for instance, the government sat back and collected a great deal of information about the suspect's car over 28 days, which the government then sought to introduce to show driving patterns that indicated drug trafficking.  Other cases might not be so clear -- the GPS may be installed for only a few days, permanent data might not be collected, the GPS information itself might not be entered into court but rather may form the basis of a seizure or a new search, and police may take simultaneous alternate measures to track the vehicle while a device is installed.  All of these alternate scenarios would seem to decrease the amount of information collected and the level of intrusion in the search.  Combine these possibilities with the fact that the search takes place on a vehicle, and the government does not typically need to get a warrant to search a vehicle, and that the searches are monitoring public movements of that vehicle, and the reasonableness determination becomes quite unclear indeed.

Both King and Jones have provided a bit of clarity in their areas of Fourth Amendment doctrine.  But both of these decisions leave open remaining questions in the remaining legal analysis.  These remaining questions become all the more important -- since they become the linchpins upon which future cases will be decided.

The Second Amendment and California Sentence Enhancements

Overview: this lengthy post discusses California sentencing enhancements and whether they pass muster under the Second Amendment.

Under section 12022(a) of the California Penal Code, a defendant who is convicted of a felony will receive a one-year enhancement on his or her sentence if that defendant was armed with a firearm in the commission of that felony unless being armed is an element of the felony.  It appears that being “armed” covers a broad category of situations, with one court interpreting section 12022(c)’s phrase “personally armed” to cover individuals who have the firearm on his or her person or “available for offensive or defensive use.”  People v. Mendival, 3 Cal. Rptr. 2d 566, 574 (1992).  This enhancement is different from other enhancements like section 12022.5 which calls for a larger sentence enhancement when the defendant personally uses the firearm.

In most jurisdictions, this sort of law would not raise Second Amendment concerns.  Many states have adopted an intermediate scrutiny approach to laws that restrict the use and possession of firearms.  California seems to be one of these states.  See People v. Ellison, 128 Cal. Rptr. 245, 249-250 (2011).  Under the intermediate scrutiny approach, a law may infringe on the Second Amendment right to keep and bear arms if the law serves an important governmental interest and is substantially related to achieving that interest.

Regulations that affect firearm possession in the home may be more problematic – at least from the perspective of District of Columbia v. Heller (554 U.S. 570).  In Heller, the Court noted that laws that ban firearms that are kept in the home for purposes of self-defense will fail constitutional muster no matter what level of scrutiny courts apply. (628-29).  It is not yet clear how far courts are willing to take this strong language.  I discuss this provision and how it relates to student housing here, but in general there has been a lack of emphasis on this part of Heller.

Heller and its language on the home is relevant to the California gun possession enhancement, and while it may not render the law unconstitutional, it certainly seems to complicate some instances of its application -- instances that I explore in depth after the break.

Jibber Jabber About Patenting DNA

Lyle Denniston reports here on the Supreme Court’s opinion in Association for Molecular Pathology v. Myriad Genetics, Inc.  The opinion’s text is available here.

I am not particularly well-versed in patent law, but the outcome seems agreeable to me.  Most importantly, it overrides the decision by Judge Sanders in Boston Legal, Season Three, Episode 21 (Tea and Sympathy) who ruled that a doctor could obtain a patent on blood that could cure itself of HIV.  The script for the episode can be found here.  Judge Sanders’ opinion and ruling was:

Truth be told, I couldn’t understand what the hell anybody was talking about in this case. It was clear to me that Mr. Griffin, as I said, was an ass. The idea of one person getting a patent on somebody else’s DNA—!  Well, you don’t have to be a senile old goat to be befuddled by that!  But the most confusing thing of all is the idea that AIDS  maybe can be cured, and progress is repeatedly being stalled by a  bunch of drug companies and scientists going for patents and  fighting over profits. I don’t doubt the sincerity of the doctor.  Legally, I suppose, he does have a patent, but I keep coming back to—this is Simon Griffin’s blood. And he’s an ass. I rule in favor of the doctor.  Adjourned.

Notably, Sanders played the “ass card,” meaning that this case was of low precedential value due to its easy distinguishability (not to mention the fact that it was a trial-level ruling).  It is also interesting to note that the Boston Legal case illustrates a scenario where getting a patent is not necessarily a profit-driven endeavor.  The doctor in the episode sought to patent his patient’s blood in light of the patient’s plan to sell his blood to the highest bidder.  The doctor’s main aim in patenting the blood was to ensure that nobody else could get a patent on the blood, and thereby ensure that a cheap, generally available drug could be made available.

Admittedly, the Supreme Court’s opinion will have a favorable impact on prices for some genetically derived cures.  And it would be naïve to think that most people who got ahold of patents on miraculous things would pursue the greater good rather than private profit.  But it is important to also keep in mind that the patent route may not necessarily always be the path of the villain.

California Crimes, Enhancements, and Other Strange Things

In doing some research at work, I ran across California’s law against assault with a firearm (Cal. Pen. Code § 245(a)(2)).  California’s assault statute (Cal. Pen. Code § 245) penalizes assault with a deadly weapon, assault with an amount of force likely to cause great bodily injury, and assault with a firearm equally: calling for a sentence of two, three, or four years imprisonment for each of these crimes.  This seems interesting, considering that these crimes all seem to be of varying degrees of dangerousness, with firearms seeming most likely to cause death, followed by deadly weapons such as knives, batteries, bicycle footrests, and dogs, (See In re David V., 223 P.3d 603, 607 (Cal. 2010) (mentioning that batteries and bicycle footrests may be deadly weapons) and People v. Nealis, 283 Cal. Rptr. 376, 379 (Cal. Super. 1991) (a dog may be a deadly weapon)), followed by fists that might be found to carry the potential for great bodily injury (See People v. Aguilar, 945 P.2d 1204, 1206-1207 (Cal. 1997)).  Because the potential for death is probably higher when the weapon employed is a firearm, it might make sense to attach a higher sentence to the crime of assault with a firearm.

The California Legislature has done this, albeit in a strange, roundabout way.  Rather than simply increasing the sentence for the § 245(a)(2) crime of assault with a firearm, the legislature enacted Penal Code section 12022.5, which enhances the sentence for any crime that involves the personal use of a firearm.  In People v. Ledesma, 939 P.2d 1310 (1997), the California Supreme Court recognized that this enhancement serves the purpose of heightening sentences for the apparently more severe crime of assault with a firearm.  The Court took this analysis so far that it concluded that the enhancement was mandatory in any 245(a)(2) case involving personal use of a firearm, despite the fact that §12022.5(d) stated that the enhancement may apply to §245 (an interpretation that Justice Mosk criticized in his dissent).  The language of §12022.5(d) now reads that the enhancement “shall” imply, making the Ledesma court’s interpretation less controversial today.

All of this has led to an interesting state of the law where a defendant’s punishment for the crime of assault with a firearm will often be less severe than the punishment for using a weapon in the commission of the crime.  The middle-term sentence for assault with a firearm is three years, while the middle-term sentence for the §12022.5 enhancement is four years.  Remember also that this enhancement is for personally using a firearm while assaulting somebody with a firearm.

The courts note that the enhancement will not always follow from the conviction.  While this is logically true, practically a failure to find for the enhancement is likely the very infrequent exception to the rule.

As far as California law goes, Penal Code section 654 typically bars multiple punishments for the same act.  This section is a non-issue in the case of firearm enhancements on assault with a firearm convictions, both because the enhancement statute explicitly and mandatorily applies itself to the assault convictions and because the enhancement’s more recent enactment and revisions take precedence in the interpretation of the conflicting statutes.

While this post may be stating the obvious for some, these laws are an interesting illustration of the piecemeal approach that legislatures take toward achieving their goals.

Grades and Negligent Infliction of Emotional Distress

With clerkship application deadlines closing in and with finals fading ever farther into the distance, I have been checking with growing frequency to see if grades have been posted.  I fortunately delayed on checking on one of my classes this evening until after I received an extremely apologetic email from UCLA's records office warning me that a spreadsheet error had led to incorrect grades being posted, that we should disregard the posted grades, and that corrections will be posted soon.  Curious, I decided to peek at my grade.  All I will say is that I hope that the records office had not yet fixed the problem.

This got me thinking about negligent infliction of emotional distress (NIED).

Most law students at UCLA despise NIED because one of our earliest writing assignments, the dreaded "Hummel Memo" requires us to put together an objective memo concerning an NIED lawsuit.  Los Angeles offices and agencies that employ students during the summer following their 1L year are intimately familiar with the Hummel memo as a common writing sample that students send in their applications.  In this culture of irritation, whimsy, and war stories, students often forget that they are learning about a valuable area of law that may be of practical use...say in a situation where somebody with a duty of care towards another person neglects that duty of care, resulting in severe emotional harm towards that other person.

In California, some lawsuits focus on lawsuits filed by a bystander to an accident.  These lawsuits proceed under Thing v. La Chuza, 48 Cal.3d 644, 648 (1989) which requires that the plaintiff "(1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness." This is the rule that all UCLA students know (or knew when they were 1Ls).

This standard may be somewhat relevant for a situation where a records office negligently posts the results of a flawed grading spreadsheet. For example, say one of my family members is present when I open the page with the mistaken grade. This family member witnesses me let out a blood curdling scream and then keel over from a massive heart attack. The family member might have a viable NIED claim against the school.

While this approach is feasible given the typical law student reaction to poor grades, the savvy law student may be able to file suit without relying on a traumatized family member. Beyond Thing, California allows NIED suits in situations involving emotional damage resulting from sensitive relationships. For example, in Davila v. County of Los Angeles, 50 Cal.App.4th 137 (1996), the court of appeals held that a coroner has a duty to act with reasonable diligence to find a family member of a recently deceased person before cremating that person. An overhasty cremation may lead to an NIED suit since negligent conduct in this situation is likely to cause a serious emotional disturbance. Law students may argue that university employees in charge of posting grades are in a position where negligent actions are likely to cause severe emotional distress. Because of this special position, a negligent posting of a horrible Evidence grade may give rise to an NIED suit.

A final practice pointer: this strategy may work for classes where the posting of a terrible grade causes emotional shock and pain. This strategy is less feasible for classes where nothing but a terrible grade is possible, which removes the element of surprise from the negligently posted grade. For this reason, students in Federal Courts and Corporate Taxation should not rely on the strategies outlined in this blog post.

A Coincidental Conviction: People v. Bob

In People v. Bob, 175 P.2d 12, 13 (Cal. 1946) Justice Carter begins by introducing us to the defendant, Leroy Bob, and defining some important terms: 

It appears that in the early evening of November 16, 1945, Bob and an acquaintance named Johnson met in a pool hall in Stockton and decided to go out ‘hustling,’ which in the vernacular means ‘to roll a drunk, strong-arm somebody.’ (175 P.2d at 13). 

The two men then lured the victim, George S. Yoshoika into an alley where Johnson bludgeoned him with an iron pipe.  They looted Yoshoika of his wallet and fled.  The court explains what happened next, introducing another unsavory character, Simmons:

Bob and Johnson then went to the hotel room of Johnson's wife, where Johnson proceeded to clean up and prepared to flee the state. The sum of $37, found in the wallet, was divided equally by the two men. Johnson also found a $50 bill which he did not mention to Bob. Bob went back into the street, met one Simmons, and told him of the crime. He and Simmons returned to Yoshioka and Simmons took Yoshioka's shoes.
Soon thereafter Yoshioka's body was observed by a passer-by, and the police were notified. Yoshioka passed away in the hospital without regaining consciousness, the cause of death being a fractured skull. The bloodstained pipe was found on the ground near the spot where Yoshioka's head had rested, but its rusty surface gave forth no fingerprints. (Id. at 13-14).

It looks like law enforcement is out of luck on this one, but: 

Johnson was taken into custody in Texas and returned to California. On December 1, 1945, in the early morning, Bob was arrested for ‘causing trouble’ in a cafe, and was booked as a suspect vagrant. When the police took him to the fingerprinting desk, he there saw Johnson. This led to his voluntary confession of complicity in the robbery and murder of Yoshioka. (Id. at 14). 

Talk about a lucky break for the prosecution.

Google Ordered by German Court to Limit Defamatory Autocomplete Results

It looks like I was too mired in finals to catch this story when it came out, but I just learned of it today.  Around last November I was clued into issues surrounding Google’s autocomplete by this story which prompted me to write an essay on whether similar litigation would succeed in the United States.  The essay is forthcoming in the University of Illinois Journal of Law, Technology & Policy, but I have not put it on SSRN just yet.

As I mention in the essay, lawsuits against websites and other internet content providers are often futile when the offending content has been provided by a third party.  This is due to §230 of the Communications Decency Act which states that internet content providers are not to be treated as publishers of information that is provided by third parties.  Courts have interpreted this provision to broadly immunize websites from lawsuits arising from content provided by third parties.  For this reason, there is an added obstacle to lawsuits against Google in the United States that may not be present in other countries.  This is because autocomplete results are formed by algorithms that monitor popular searches and suggest terms that are commonly associated with names or topics.  These users doing the searches may be considered third party content providers from whose conduct Google is immunized.  I argue in the essay that this obstacle may be overcome in the case of autocomplete defamation, however, since the information that is posted through autocomplete is not provided for purposes of posting on the internet, it is derived from individual searches that people do not expect to be broadcast to the world.

Courts are generally leery of imposing liability on websites because courts are worried that liability will chill internet speech.  Additionally, a concern that is particularly relevant for websites like Google is that the breadth of content they are dealing with is massive.  There is a strong argument that Google cannot be expected to monitor the output of its autocomplete algorithm with respect to all of its search terms.  This argument is weaker, however, if Google is required to remove offending content only upon notification by the person defamed.  This seems to be what the German court is requiring.

Successful lawsuits like the one in Germany are relevant to potential lawsuits in the United States because if Google complies with the resulting court orders, this compliance may serve as a model for how Google may regulate its content in the United States if plaintiffs successfully sue for defamation.  While theoretical arguments about chilling speech and restricting features may have persuasive impact, situations like the one in Germany may provide an opportunity to see the actual effects of restrictions on autocomplete, and show whether these theoretical concerns will play out in the real world. 

Horwitz on Hypothetical "Deals for Wheels" Conundrum

On this blog I will normally aim to shy away from simply posting links to things that I find elsewhere, but I found this post by Paul Horwitz at PrawfsBlog to be too interesting to resist.

Forfeiture and Appellate Court Discretion - What's an Appellate Advocate to Do?

In preparing for an oral argument later this month, I have found that several of the arguments involved concern whether a party forfeited an argument at trial by failing to make the argument in a motion.  Typically, if an objection is not made at trial, the right to appeal based on this issue is forfeited, and an appellate court will refuse to consider this issue.

I came across this footnote from People v. Williams, 948 P.2d 429 (Cal. 1998) while familiarizing myself with the relevant case law.  Regarding the court of appeal's consideration of a sentencing issue that had not been objected to a trial:

Williams claims that, under People v. Scott [citation] the Court of Appeal erred by undertaking to review the superior court's order at all.  We disagree.  In Scott, we held only that a party cannot raise a "complaint [] about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons ... for the first time on appeal." [citation]  We did not even purport to consider whether an appellate court may address such an issue if it so chooses.  Surely, the fact that a party may forfeit a right to present a claim of error to the appellate court if he did not do enough to "prevent[]" or "correct[]" the claimed error in the trial court [citation] does not compel the conclusion that, by operation of his default, the appellate court is deprived of authority in the premises.  An appellate court is generally not prohibited from reaching a question that has not been preserved for review by either party.

I am curious about how or whether appellate advocates can use this reasoning in advancing arguments that may have been forfeited at trial.  While Williams states that this practice is not allowed, its prohibition seems significantly qualified since a forfeited argument could be the basis of the appellate court's decision.  It seems plausible that a party could advance a forfeited argument and cite Williams as saying that the reviewing court has the discretion to consider this argument.  In fact, even if there are other arguments that a party can make against forfeiture, it would seem silly not to point out that this discretion exists, so even if the reviewing court finds that the issue was forfeited at trial, they are reminded that they still have discretion to consider the issue.

This practical implication of the appellate discretion portion of this footnote seems to inevitably clash with the portion of the footnote that bars parties from raising forfeited issues on appeal.  In light of appellate court discretion, it seems like the stated prohibition on advancing forfeited arguments loses a lot of its power over limiting the arguments by appellate counsel.

I guess that I'll have to wait until oral argument to see how this gets resolved.  Can't wait.

Twombly, Iqbal, and Civil Rights: An Interesting Thesis with a Flawed Methodology

Raymond H. Brescia and Edward J. Ohanian have posted their article, The Politics of Procedure: An Empirical Analysis of Motion Practice in Civil Rights Litigation Under the New Plausibility Standard on SSRN.  Here is the abstract (buckle down, it's three paragraphs)  To assist the busy reader, I have emphasized the most important parts of the abstract:

Is civil procedure political? In May of 2009, the Supreme Court issued its decision in Ashcroft v. Iqbal, which explicitly extended the “plausibility standard,” first articulated in Bell Atlantic v. Twombly two years earlier, to all civil pleadings. That standard requires that pleadings, in order to satisfy Rule 8(a) of the Federal Rules of Civil Procedure, must state a plausible claim for relief. For many, these rulings represented a sea change in civil pleading standards. Where prior Supreme Court precedent had provided that a pleading should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim,” the new standard requires that judges utilize their own “judicial experience and common sense” to determine whether claimants have set forth facts sufficient to “nudge their claims across the line from conceivable to plausible.” In the years since their issuance, this standard has provoked many questions. One such question, which lurks behind all otherwise neutral rules of procedure is the following: could this apparently neutral principle of procedure be subject to political manipulation?  

After Twombly, and again after Iqbal, many expressed fears that the new plausibility standard offered judges too much discretion; a judge could dismiss a case where a plaintiff’s claims did not comport with that judge’s experience and common sense. There was a particular fear that this discretion would have a disparate and adverse impact on civil rights cases: i.e., if members of the federal bench were predisposed to disfavor such claims, they might use these precedents to dismiss civil rights cases too readily. Several years have now passed since the Court issued these decisions, and the district courts have compiled a body of thousands of decisions citing these precedents. As a result, it is now possible to assess the impact of these decisions on practice in the lower courts, particularly their effect on civil rights cases. The study described here attempted to do just that by looking at outcomes and trends in motions challenging the specificity of the pleadings in over 500 employment and housing discrimination cases over a period of six years (including decisions issued both before and after Twombly and Iqbal). This research reviewed the outcomes in such cases based on a number of metrics, including, most importantly, the political affiliation of the president who appointed the judge issuing each decision reviewed.  

The study revealed a statistically significant relationship between the outcomes in civil rights cases and time period (i.e. pre-Twombly, post-Twombly but pre-Iqbal, and post-Iqbal) where the political affiliation of the president who appointed the judge reaching the decision in each case was Republican. For cases decided by judges appointed by Democrat-affiliated presidents, no such relationship was observed. This paper reports on the findings of this study and discusses their implications.

Okay, back to my post.

For those still with me, here are the two most telling sentences of the article:

"One shortcoming of this study is that it did not compare outcomes in civil rights cases to outcomes in other types of cases. While other studies have done that, as stated earlier, those studies had their limitations."

This is a big deal, and it is a much bigger qualification on this article than the authors admit.  The authors are advancing a conclusion that specifies civil rights cases and claims to reach significant results.  I contend that the authors' failure to compare outcomes in civil rights cases to other types of cases amounts to a failure to include a control group.

While Republican-appointed judges may bar more civil rights suits, if these judges are as political as the author hypothesizes, it would not be surprising if these judges were more hostile towards litigation in general.  It has long been a part of Republican political platforms that more litigation is a bad thing, so we might expect Republican-appointed judges to turn down more complaints in general with the discretion they get from Twombly and Iqbal.  While this language was noticeably absent in the most recent presidential campaign (a phenomenon explored by Professor Stephen C. Yeazell in an article that will eventually be available here), Republicans still espouse this position and many of the Republican judges involved in this study were probably appointed by earlier presidents (although this is unclear).

So are the higher rates of dismissal of civil rights cases by Republican-appointed judges due to the nature of the cases?  Or can they be explained by a hostility that Republican-appointed judges hold towards litigation in general?  I think that these questions can only be answered by a study that controls for hostility to general litigation by including a randomized set of cases as a control group.  Without this control group, I have serious doubts that any claim of significance can be made.

This is a problem that deserves more attention than two sentences.

First Amendment Overbreadth vs. Fourth Amendment Exclusion and Good Faith

Under the overbreadth doctrine, a defendant who is convicted under a law that in some situations may violate the First Amendment can challenge her conviction on the ground that the law is overbroad.  This means that even if the defendant’s conduct is not protected by the First Amendment, the defendant’s conviction for this conduct can be overturned if she can successfully argue that the law under which she was convicted is overbroad.  The overbreadth doctrine is justified on the ground that those who would engage in protected speech that is outlawed by an overbroad statute would be chilled from this speech and would therefore never be convicted and challenge the law in the first place.  The overbreadth doctrine helps assure that laws that violate the First Amendment will be overturned by widening the scope of those who can challenge the law and by providing the incentive of a conviction reversal for those defendants who challenge the law. 

Compare this doctrine with the exclusionary rule and the good faith exception to this rule in Fourth Amendment law.  Under the exclusionary rule, if a search is found to violate the Fourth Amendment, the evidence the search uncovers is excluded from evidence.  The exclusionary rule is based on deterring peace officers from violating suspects’ rights by ensuring that evidence uncovered through a Fourth Amendment violation will be excluded at trial.  The argument behind the good faith exception is that officers who act in reliance on statutes or precedents are following the rules and not engaging in the abuse that the exclusionary rule is meant to prevent.  In Davis v. United States, 131 S.Ct. 2419 (2011), the Supreme Court held that “Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.”  Davis is part of a line of good faith cases that begins with United States v. Leon (1984) which allowed evidence from a search in “objectively reasonable reliance” on a search warrant that was later found invalid (United States v. Leon 468 U.S. 897)  These cases also include Illinois v. Krull, where the court held that the exclusionary rule should not apply to searches done by police officers who act in reasonable reliance on statutes that are later found invalid (Illinois v. Krull, 480 U.S. 340 (1987)). 

The justification for the good faith exception does not address the point that police behavior may still have an abusive effect even if it is sanctioned by precedent or statute.  There also seems to be no acknowledgment of the point that applying the exclusionary rule may get the attentions of judges and legislators when they are drafting laws and opinions and prompt them to be more cautious in the future.   

Under the good faith rule, it would seem that if a defendant whose Fourth Amendment rights were violated successfully challenges her conviction on this basis, resulting in the overturning of the unconstitutional law or precedent that justified the search, the evidence from that search would still be admitted against the defendant because it was obtained in good faith.  Contrast this with the end result of an overbreadth challenge: a defendant whose own conduct is not protected by the First Amendment, and therefore whose rights are not violated by the conviction, can challenge the overall law on the basis of the First Amendment and, if successful, her conviction is overturned.  

Both of these amendments textually prohibit government actions, but the two sets of doctrine each has spawned seem worlds apart. These two approaches indicate how the Court seems willing to take proactive measures to protect First Amendment rights, but not so much when it comes to the Fourth Amendment.

Marijuana Legalization, Racial Disparity, and Interest Convergence

"A black person in Iowa is more than eight times as likely to be arrested for marijuana possession than a white person, even though both use marijuana at about the same rate, according to a report issued Tuesday by the American Civil Liberties Union" notes the Des Moines Register.  The full report is available here.  The report is a national-level call for the legalization of marijuana due to the racial disparity in those prosecuted and punished for marijuana-related crimes.

This report shows that the real, underlying problem is the detrimental impact of racial profiling and racial disparity in arrest and incarceration rates.  The report's stated conclusion, however, is that "the War on Marijuana, like the larger War on Drugs of which it is a part, is a failure."  This statement, which is the overriding theme of the report, overshadows the evidence of arrest rate disparities by race.  While discussion of race is admirably prominent, the plausible advocacy of the report seems focused on legalizing marijuana.  The conclusions of the article relating to racial profiling of African Americans are limited to several page-long, platitudinous recommendations that "Police Departments Should End Racial Profiling" and (even more naively) "Police Procedures Must Be Fair and Constitutional."  Police departments are not going to simply end racial profiling since race-based stops are usually not going to cause any significant constitutional problems for prosecutions (See Whren v. United States and United States v. Brignoni-Ponce).  Changes on the statutory or law enforcement guideline level that prohibit these practices might make a difference, but that is not what this report advocates.

First, two disclaimers.

First Disclaimer: I'm no expert in critical race theory.  I have done some research into implicit bias and racial performance in other projects, but I am looking to make a point along the lines of interest convergence, a theory I have peripherally explored but would not claim to fully know.  Because of this, I will do my best to make an argument involving interest convergence, but I warn that I may be mistaken in my application of the theory or in the terminology I use.

Second Disclaimer: From what I have learned in my reading on interest convergence, I have my own hesitations regarding the theory.  My biggest concern is that arguments from interest convergence can form intuitive, compelling stories, but it is unclear how much of an actual effect interest convergence has on the development of policies.  I am certain that more research has been done on this point by supporters and detractors of the theory, and I am not looking to explore the debate here, but I just want to make my overall position clear.  The argument that follows sets aside any concerns I have with the merits of interest convergence theory and proceeds from the assumption that the theory is valid.

My argument is that the ACLU's report seems to be a paradigmatic example of interest convergence.  While this report's advocacy may lead to some net gain, underlying problems will remain unsolved and efforts that further the legalization of marijuana may result in an inefficient use of political capital.  

The report and the reforms it advocates harness the power of interest convergence in seeking solutions to problems faced by African Americans.  Ending the war on marijuana would reduce arrests for people of all races.  As the report admits, both Whites and African Americans use marijuana at similar rates, and while Whites are not arrested with the same frequency, they are still arrested and they still face the risk of arrest, even if this risk is lower than the risk faced by African Americans.  This risk would be eliminated for all whites who use marijuana if marijuana were legalized.  Admittedly, this argument applies to those Whites who are interested in smoking marijuana and is therefore not universally applicable (though it certainly would be widely applicable to many in the Los Angeles community).   Furthermore, the report emphasizes the costly nature of marijuana prosecutions and argues that overall legalization will reduce this financial burden on the citizenry.  This argument is structured to appeal both to Whites and African Americans, since the entire citizenry shares in the cost of paying for these prosecutions.

Viewing the report in this manner reveals that marijuana legalization is an indirect way to address racial disparities in arrest and incarceration rates.  There may be a benefit to this policy: the report details the high number of arrests of African Americans due to marijuana-related crimes, and arrests for these crimes would not occur if  these crimes were eliminated.  On the other hand, the legalization of marijuana would do nothing to address racial profiling by police, which is the real reason for the disparity in arrests and incarceration that prompted this report.  The political capital that would need to be spent on advancing the controversial policy of marijuana legalization could be better spent elsewhere, namely on statutes and ordinances that go beyond the limited protections provided by the Fourth Amendment and prohibit the use of race in forming probable cause or reasonable suspicion.  These statutes would have the benefits of directly addressing the problem and would apply to all prosecutions, not just prosecutions for marijuana-related crimes.  This alternate approach may also be perceived as less controversial than marijuana legalization and would be a good initial step towards trying to solve the problem.  Statutes barring race-based searches and seizures would likely run into problems if the marijuana legislation suggested by the ACLU were passed: detractors of the search and seizure statutes could argue that the problem has been solved by the marijuana legislation, or that advocates of new policies would at least need to wait and see the effects of the marijuana legislation before they could make convincing empirical arguments.

As a final thought, there may yet be some merit to advancing the argument about marijuana legalization as the alternative to statutes that prohibit racial profiling and race-based searches and seizures.  Given the apparent option between nothing, search and seizure statutes, or marijuana legalization, the search and seizure statutes might seem like an acceptable middle ground.  Voters may compromise if there is this wider spectrum of policy options.  In the future, organizations like the ACLU that advance marijuana legalization policies should do a better job of developing the middle ground of search and seizure statutes since people who are not willing to go all the way and legalize marijuana may still seize onto the alternative of statutory restrictions on searches and seizures.

Proposed Iowa City Ordinance Bans Red-Light Cameras, Drones, and License Plate Scanners

ARS Technica posts about an Iowa City ordinance that purports to outlaw police use of red light cameras, drones, and license plate scanners.  While I have yet to read the ordinance in its entirety, this relates to further work I hope to do over this summer on how the implementation of automated surveillance programs can contribute to the existing geography of urban environments and either further or mitigate disparities in law enforcement practices depending on how the programs are structured and adopted.  A general assumption that my project will make is that the implementation of these programs is an inevitability as technology develops and as law enforcement tries to take advantage of these developments.

If this post is correct in its statement of the exhaustive nature of this ordinance, and if this ordinance is successfully passed, it would be an interesting counterexample to the trend I am predicting.  Additionally, the group that is backing this ordinance seems to be in the same vein as the eccentric groups that recently successfully opposed the construction of the Justice Center.  If this portion of the electorate can repeat its success, this ordinance may well become a reality.

Exploring Dicta

Black’s Law Dictionary defines “obiter dictum” as “A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).”  This phrase is commonly shortened to “dictum” or its plural, “dicta.”  The portion of this definition that I would like to focus on is “unnecessary to the decision in the case and therefore not precedential.”

I won’t immediately conclude that Black’s Law Dictionary is incorrect.  Many courts seem to use this definition or a variation of it when describing dicta, so Black’s Law Dictionary correctly states the commonly accepted definition of the term.  However, while this definition is popular, it is wrong, or in the very least, misleading.

Many decisions reach a result for multiple sufficient reasons.  It would seem very odd to conclude that a decision has no precedential value simply because there are two sufficient reasons to reach that decision.  Quite the contrary: the explanation of multiple reasons signals that this opinion is particularly thorough and well-developed – a far cry from something that should be disregarded as not precedential.  The definition of dicta, however, compels the rejection of the full opinion, since the existence of multiple sufficient reasons for an outcome renders neither reason necessary (and unnecessary statements are not precedential).

Courts recognize that this would be crazy, and have thankfully qualified the definition of dictum.  The California Supreme Court, for instance, noted that “where two independent reasons are given for a decision, neither one is to be considered mere dictum, since there is no more reason for calling one ground the real basis of the decision than the other.”  (Southern California Ch. Assoc. Builders v. California Apprenticeship Council, 841 P.2d 1011, 1015 (Cal. 1992)).  Despite this fortunate qualification, the overly simple definition that identifies “dictum” with “unnecessary” is still likely to create confusion. 

A better approach would be to define dicta as those statements are comments that are “not necessary and not sufficient to reach a result, or those statements that are affirmatively labeled as dicta (or peripheral) by the court issuing the opinion.”  This approach would prevent multiple sufficient reasons from being labeled as dicta.  This approach would also grant courts the ability make broad statements without the fear that these statements will veer into the realm of dicta, so long as the courts qualify these statements.

Admittedly, this is a rough and preliminary outline of a definition of dicta, but I think it already has several advantages over the popular approach that Black’s Law Dictionary espouses.  There have been more thorough attempts to define dicta, including this impressive 2005 article by Michael Abramowicz and Maxwell Stearns that defines holdings as "propositions along the chosen decisional path or paths of reasoning that paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment."  Non-holding propositions are dicta.

I don't immediately see any troubles with this alternative definition, but I do want to flag another article by David Klein and Neal Devins that should underlie any discussion of dicta.  Even if a court recognizes a statement as dictum, that court may still give that statement full precedential value.  This happens a great deal, argue Klein & Devins, which casts doubt on the overall implications of the dicta/holding distinction.

Reaction to Maryland v. King

The Supreme Court decided Maryland v. King yesterday, holding that police can test the DNA of people arrested for "serious offenses."  My feelings on this case are mixed, largely as a result of the statute involved. I think that Scalia is correct to criticize the majority's characterization of the DNA collection as an identification tool, with the most damning part of the statute being the restriction that the DNA not be submitted to a database until the arrestee's arraignment.  This, combined with the time it takes for DNA to be analyzed casts serious doubts on whether DNA testing really serves this purpose of identification.

That said, there is some substance to the majority's argument that the DNA can be tested for purposes of identification.  It is my understanding that the testing of junk DNA markers constitutes a "gold standard" in identifying individuals and that a DNA database may have the potential to become a more accurate version of a fingerprint database.  Furthermore, I am not entirely convinced by the arguments that I have heard advanced by critics worried about familial identifications or the fear of some massive DNA database.  Familial identification is prohibited by the statute at issue in this case, so arguments that this case leads in that direction goes beyond the facts before the court.  Additionally, I fail to see how a DNA database is much more worrisome than a fingerprint database.

Most importantly, I don't see how much the Fourth Amendment can protect citizens from the scariest possibilities of DNA identification.  My DNA is something that the government could collect without any intrusion whatsoever.  If police get ahold of a glass I have recently drank from, they may be able to register my DNA profile from that glass without ever needing to intrude on my person and implicating my Fourth Amendment rights.  Granted, the program in King involves a more regulated system that is more likely to get an adequate sample, but the possibility remains for the government to covertly gather information about my DNA without any apparent violation of my Fourth Amendment rights.  I feel like this is the hypothetical situation that frightens people the most, and it may be up to statutes to protect people from any intrusion in this scenario since it seems to be a stretch to argue that the government's action in this scenario constitutes a "search" under the Fourth Amendment.  With this in mind, I think that Maryland's statutory safeguards are a silver lining of this opinion, and the Court's reliance on these safeguards in its opinion will hopefully prompt their adoption by other states.

My last thought on this case is to echo and emphasize Orin Kerr's prediction that this holding will probably not be limited to serious felonies.  The majority's overriding focus on identification of suspects, illustrated by its use of the non-serious arrests of Timothy McVeigh for a missing license plate and Joel Rifkin for speeding (p. 12) indicate that the majority is more concerned with identification of criminals than with the severity of the crime.  While the holding's language is limited to arrests for serious offenses, the logic of the opinion is in no way limited to this class of crimes.

Pundits on the First Amendment: Wrong Even by Their Own Misguided Standards

Whenever there is a scandal involving an alleged infringement of the rights of the press by the government, it is inevitable that talking heads of the opposite party will decry this invasion and temporarily take up Hugo Black’s absolutist approach to the First Amendment.  “Congress shall make no law!” bellow these pundits, expressing outrage at the government’s infringement of this blanket prohibition.  After a week or two, some talking heads return to a more practical approach to the First Amendment while most (thankfully) cease opining on the issue altogether.

The current situation involving allegations that the Department of Justice invaded the privacy of Fox News’ James Rosen is no different.  Pundits lament that this is an outrage because of the First Amendment’s absolute prohibition on infringing the freedom of the press.  While I agree that freedom of the press is important and that something fishy probably happened, I am nevertheless irritated by people who reach these right results for dangerously wrong reasons.  

There is, of course, the boring, sensible argument against the pundits: the First Amendment is not absolute, and speech and even freedom of the press can be constrained in certain situations.

But there is an even bigger (and funnier) problem with the talking heads in this situation.  It is a problem that should be apparent even in the simplistic world of memes, pictures with quotes, and catchphrases.  The talking heads, so obsessed with the simple text of the first five words of the First Amendment, have ignored the simple text of the first word of the First Amendment.  The Department of Justice is part of the executive branch, not Congress.  These pundits, so obsessed with the helpful “make no law” language of the First Amendment, have bypassed text that, on its face, cancels out their entire complaint.

I am not arguing that pundits are wrong to argue that there are potential First Amendment implications in the Rosen situation.  I am certainly not arguing that the First Amendment only applies to acts of Congress – to do so would be to ignore a great deal of First Amendment law.  I raise this point to show that these folks who have somehow gotten the media’s attention are not only oversimplifying the intricacies of First Amendment law, but they are advancing an argument is flatly contradicted by their own simplistic logic.  Listen to them at your own risk.

For more on the delightful peculiarity that is the first word of the First Amendment, I recommend these relevantly titled articles:

Mark P. Denbeaux, The First Word of the First Amendment, 80 Nw. U. L. Rev. 1156 (1986) (unfortunately only available on Westlaw).

Daniel J. Hemel, Executive Action and the First Amendment’s First Word, 40 Pepp. L. Rev. 601 (2013) (available here).

Actions of the Defendant vs. Actions of Defense Counsel

In judicial opinions, the defendant or appellant is typically identified with the defense attorney or appellant’s counsel.  For example, much of the language describes how “the defendant objected to…” or “appellant argues on appeal that…” even though the person who is objecting or arguing is the defendant’s or appellant’s counsel, and not the defendant or appellant him or herself.  In most cases, this technique of describing arguments and events does not seem to make much of a difference to the outcome or character of these arguments.

In some situations, however, identifying defense counsel with defendant would seem to make a difference.  One situation is when an appellant argues that there was ineffective assistance of counsel at trial.  Certainly in phrasing arguments, the defendant (or at this point, the appellant) will argue that “defense counsel” rather than “defendant” did or failed to do things that led to an unfavorable outcome.

But beyond this simple difference in phrasing, there seems to be a more significant difference.  This difference arises when the defendant testifies on his or her own behalf at trial.  In these scenarios, the defendant may say something that is harmful to his or her case, much to the frustration of defense counsel.  For instance, a defendant may state that she has prior convictions and further testify that these convictions are irrelevant or were not true.  If this happens, defense counsel would likely be prevented from objecting to the use of these previous convictions by the prosecutor since the defendant would have already introduced this evidence.

Compare this scenario to a situation where defense counsel asks the defendant about a prior conviction on direct examination despite the fact that this prior conviction is most likely not admissible (say it is older than ten years or a misdemeanor not related to credibility).  Again, defense counsel will likely be precluded from objecting to the prosecution’s use of this prior conviction since the defense counsel would have already introduced it.

On appeal, it would seem that the first defendant would not be able to argue ineffective assistance of counsel, but the second defendant would be able to do so.  The first defendant’s counsel, at most, failed to advise the defendant from discussing her prior conviction.  In the second situation, the defense attorney is actively requesting the information, which is a clear, identifiable action by counsel that could form a more compelling basis for an ineffective assistance of counsel claim.

Comparing these two situations illustrates the importance of advising defendants what they should or should not say.  It seems generally more advantageous for defense attorneys to elicit potentially objectionable material since (from a pessimistic perspective) this does not seem to as apparently preclude later ineffective assistance claims as information volunteered by the defendant. 

From a less pessimistic perspective, as cases like People v. Turner, 789 P.2d 887, 905-907 (1990) illustrate, the defendant may argue on appeal that the elicitation of the evidence by defense counsel was a matter of trial strategy rather than a mistake – a strategy that may be successful in situations where the law later changes, or if the evidence had already been admitted over the defense’s objection.  If the defendant volunteers the objectionable information himself, however, later objections to this evidence on appeal may be forfeited, since this would look more like a failure of the defense counsel to control the defendant’s testimony rather than a strategic decision by defense counsel.

Inaugural Post: Juris et de Jure

In trying to come up with a title for this blog, I considered naming this blog after one of the many Latin phrases that are common legal language.  There were several reasons I went in this direction.  This blog is not topic-specific, so I did not want to constrain the scope to a certain area of law, and there are many Latin terms and phrases used in numerous contexts.  A broad phrase would signal the breadth of subject matter I hoped to cover.  Additionally, I hoped that a Latin legal phrase might signal that this is a blog about law rather than a blog about something unrelated to law that is incidentally written by a law student.  Ultimately I scrapped the plan: the best terms were already taken, many phrases were too abstract, and the use of Latin conveyed an air of pretentiousness and seriousness to which I did not want to commit.  One phrase that I learned during this process stuck with me, however, the phrase juris et de jure.  Even though I ended up choosing the generic (yet descriptive) title: "Michael Smith's Law Blog," I felt like the phrase juris et de jure was a good topic for my first post.

Juris et de jure (translation, "of law and from law") denotes a presumption of law that cannot be rebutted by evidence.  As far as Latin legal terms go, it is not widely used.  Phrases such as res judicata, prima facie, and quantum meruit are employed in the day-to-day lives of practitioners.  Even lesser-used phrases such as arguendo, inter alia, and perhaps even ipse dixit are called on by those lawyers wishing to distance themselves from common folks.  Juris et de jure, in the meantime, has fallen by the wayside.  While occasionally used by courts to denote irrefutable presumptions or the admiration of legal authorities, the term is also employed by parties that seem to believe that this term will somehow bolster an otherwise untenable case.

Despite its obscurity and abuse, juris et de jure is an illuminating concept that foreshadows some of the themes I hope to explore in this blog.  

Laws reflect assumptions and traditions held by the legislators that draft them and the courts that apply them, and in some cases it only takes a few moments of critical thinking to realize that these assumptions are no longer valid, or may never have been valid in the first place.  While this thinking may generate compelling policy arguments, practical concerns dictate that one remain within the confines of the law as it is written.  

Take Rule 804(b)(2) of the Federal Rules of Evidence.  Under this rule, a statement made under the belief of impending death about the cause or circumstances of this belief is an exception to the rule against hearsay if the witness is not available to testify.  The advisory committee notes that this exception was part of the common law and was originally grounded in religious conviction, but that the rule is further justified by psychological pressures on the witness.  One might want to argue that this rule is misguided and that individuals who are about to die are often losing control of their facilities and may say false and nonsensical things as a result.  This argument may have merit, but it will bring little success in the real world where the court's concern will be with whether the rule's requirements are met, and not whether the rule is correct.  The law is the law, after all, and arguing otherwise will probably do nothing more than amuse (or worse, antagonize) the judge.

Juris et de jure also reflects a tendency of some legal scholarship to use and interpret theories and concepts from other disciplines without regard to the rigors and continued testing of these theories within their original disciplines.  Legal academia may rely on its original adaptation of a theory and look to legal discussion of the concept rather than the discipline from which the theory was drawn.  In failing to explore the original source of a theory, legal scholars may miss developments in other disciplines that render law's use of these disciplines' theories outdated and irrelevant.

An interesting, forthcoming article by Gregory Klass (Georgetown University Law Center) and Kathryn Zeiler (Georgetown University Law Center) illustrates how legal scholars may get caught up in legal academia's version of another discipline's theory.  Klass and Zeiler detail how legal scholarship adopted "endowment theory" from the field of cognitive psychology and experimental economics.  Under endowment theory, people assign more value to items they own than similar items they do not own.  Recent empirical developments indicate that there are serious problems with endowment theory and that reliance on this theory is not warranted.  Despite these developments, legal academics continue to treat endowment theory as a rule, often citing solely to literature published in law reviews rather than in journals of cognitive psychology or behavioral economics.  Despite contrary developments in the disciplines that created it, endowment theory remains the law in legal scholarship.

Finally, juris et de jure reflects the potential quirkiness and amusement that may be found in explorations of the legal field.  A.P. Herbert explores the notion of legal Latin in the fictional case, Rex v. Venables and Others: (The Dead Pronunciation) in his book, Uncommon Law.  In this case, the Lord Chief Justice remarks on the prevalence of Latin in the legal profession and proclaims that the language is far from dead.  The Lord Chief Justice chastises a young attorney who utters terms like "kairtiorahree," "preemah fakiay," and "soob poynah."  The Lord Chief Justice admonishes the attorney and proclaims that his version of Latin is improper in the courts, where the terms "certiorari," "prima facie," and "subpoena" are the traditional and accepted pronunciations.  These pronunciations, like presumptions juris et de jure, are immune from criticism or evidence that these pronunciations are consistent with the original Latin of Ancient Rome.

In this blog I hope to explore and evaluate assumptions of laws and legal scholarship.  I will apply this critical analysis to current events in the world of legal practice.  Throughout, I will do my best to illustrate how the prestigious study and practice of law constantly lends itself to humor and outlandish stories.  As a third year student at the UCLA School of Law, I acknowledge that my posts may sometimes be incomplete or incorrect.  I assure you that my posts are not juris et de jure and I will remain open to opposing views and contrary evidence.