First Amendment Students Take Note: Kansas Professor Placed on Leave for Tweet

Over at Constitutional Law Prof Blog, Ruthann Robson posts about a University of Kansas journalism professor, David Guth, who was recently placed on administrative leave following a tweet about the Navy Yard shooting in Washington DC.  The Kansas City Star reports on the story here.

The tweet read:

"The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”

Law students who are taking First Amendment law should take note of this story because, as Robson notes, this scenario is an excellent candidate for an issue-spotting question. This scenario raises the issues of speech by public employees, true threats, advocacy of illegal action, defamation, and probably others.

The one point I would like to Robson's analysis is that I don't think that there is as much of a reason to analyze this situation under a true threats approach as there is to ask whether it constitutes advocacy of illegal action. Guth does not seem to indicate that he is about to attack NRA members so much as he voices a call that the members suffer.

Because of the general nature of Guth's tweet, and because the tweet appears to simply wish that NRA members suffer from violence rather than urge others to do violence upon NRA members, the tweet does not seem to rise to the level of unprotected speech under Brandenburg.

As a final note on this issue, I checked out Guth's personal blog. As Robson notes, the September 16 entry discusses the Navy Yard shooting. I was distracted, however, by Guth's blog description, which I found to be eloquent, if not poetic:

There are a lot of people online with nothing much to say. I am not one of those folks. I hope that you find my comments insightful, provocative and occasionally amusing. I am a college professor, Jayhawk Journalist and writer. I am not software engineer. I am a content guy. Whatever this blog may lack in flash will be more than made up for in substance.

Also, every post that Guth writes ends with "That's it for now.  Fear the Turtle."  I don't know why.

Kontorovich on Why Greenpeace Activists Are Not Pirates

I posted a little while back about Greenpeace's boarding of a Russian oil platform and the subsequent arrest of the activists.  Today, at the Volokh Conspiracy, Eugene Kontorovich posted about the issue.  I suspect that he had received numerous emails following his analysis of a previous case involving Sea Shepherd, and decided to set the record straight.

I was happy to see that I was correct in my earlier conclusion (it was my first foray into piracy law, after all), although Kontorovich makes a wider variety of arguments to support this conclusion.  He writes:

The Greenpeace activities are most certainly not piracy for several reasons. The modern definition of the offense can be found in Art. 101 U.N. Law of the the Sea Convention (UNCLOS III), Art. 101(a)(1).

First, piracy requires an attack against a “ship.” The Greenpeace incident involved an oil rig, which is not a ship because it is not navigable. (The 1988 SUA Convention dealing with maritime violence beyond piracy required a separate protocol to apply to oil platforms).

Second, piracy requires “acts of violence or detention.” Here the Greenpeace activist merely put a poster on the platform. This does not constitute violence. In the Ninth Circuit case, by contrast, the Sea Shepherd vessels allegedly attempted to ram Japanese whalers, hurled projectiles at them, and so forth. While the defendants argued this did not amount to violence, it is certainly more colorable than a poster. The Greenpeace activists certainly committed trespass, but not piracy.

Indeed, it is Russia that fairly clearly violated UNCLOS by seizing the ship for the misconduct of the crew. The arrest of a vessel is strictly forbidden “even as a matter of investigation,” (Art 97(3)), except for piracy. The piracy allegations here are clearly pretextual, making Russia liable to the Netherlands for seizure “without adequate grounds,” Art. 106. 

It would appear that Kontorovich is an influential figure indeed.  The BBC reports that Russian President Vladimir Putin mentioned the Greenpeace Activists earlier today:

Mr Putin, speaking at a forum on the Arctic, said: "It is absolutely evident that they are, of course, not pirates."

But the protesters are not safe yet:

A spokesman for Russia's main investigating agency, the Investigative Committee, said the charges might be changed if new evidence emerges.

Maybe the oil platform was actually a ship.  This would be a significant development indeed.

An Internet "Delete" Button?

The BBC reports that California recently passed SB 568, which is scheduled to take effect in 2015.  Among other things, the bill requires that websites permit children under the age of 18 to remove material that those children post on the websites.  Common Sense Media, a nonprofit, writes in support of this bill, noting that children are likely to post material they will later regret.  Jim Steyer, the organization's CEO, writes that kids "sorely need" an Internet "erase" button.

Here is the relevant text of the bill:

22581. (a) An operator of an Internet Web site, online service, online application, or mobile application directed to minors or an operator of an Internet Web site, online service, online application, or mobile application that has actual knowledge that a minor is using its Internet Web site, online service, online application, or mobile application shall do all of the following:(1) Permit a minor who is a registered user of the operator’s Internet Web site, online service, online application, or mobile application to remove or, if the operator prefers, to request and obtain removal of, content or information posted on the operator’s Internet Web site, online service, online application, or mobile application by the user.(2) Provide notice to a minor who is a registered user of the operator’s Internet Web site, online service, online application, or mobile application that the minor may remove or, if the operator prefers, request and obtain removal of, content or information posted on the operator’s Internet Web site, online service, online application, or mobile application by the registered user.(3) Provide clear instructions to a minor who is a registered user of the operator’s Internet Web site, online service, online application, or mobile application on how the user may remove or, if the operator prefers, request and obtain the removal of content or information posted on the operator’s Internet Web site, online service, online application, or mobile application.(4) Provide notice to a minor who is a registered user of the operator’s Internet Web site, online service, online application, or mobile application that the removal described under paragraph (1) does not ensure complete or comprehensive removal of the content or information posted on the operator’s Internet Web site, online service, online application, or mobile application by the registered user.(b) An operator or a third party is not required to erase or otherwise eliminate, or to enable erasure or elimination of, content or information in any of the following circumstances:(1) Any other provision of federal or state law requires the operator or third party to maintain the content or information.(2) The content or information was stored on or posted to the operator’s Internet Web site, online service, online application, or mobile application by a third party other than the minor, who is a registered user, including any content or information posted by the registered user that was stored, republished, or reposted by the third party.(3) The operator anonymizes the content or information posted by the minor who is a registered user, so that the minor who is a registered user cannot be individually identified.(4) The minor does not follow the instructions provided to the minor pursuant to paragraph (3) of subdivision (a) on how the registered user may request and obtain the removal of content or information posted on the operator’s Internet Web site, online service, online application, or mobile application by the registered user.(5) The minor has received compensation or other consideration for providing the content.

(For the full text, see here)

I am not sure how much of a difference this law will make.  Most popular websites, like Facebook, allow users to delete material they have posted.  Moreover, section 22581(b)(2) makes it clear that the law does not require that websites delete material posted by minors that is reposted or copied by third parties.  The posts that are most destructive to one's reputation are those that are noticed, copied, and distributed.  

Of course, requiring the law to delete material copied or reposted by third parties would be a logistical nightmare for websites -- especially when it comes to material that goes viral.  Some sites are already worried that this law will discourage websites from marketing themselves to younger users and perhaps restrict minors altogether.

SB 568, while a bit interesting, will probably have very little impact on deterring minors from making dumb decisions about what to post online.  It may, however, confuse and worry websites who may not be sure just how "clear" their "notice" to minors should be.

Mixing Beer with Caffeine is Illegal in California

An exciting discovery, yes, but first some background:

I recently learned that a lovely Los Angeles bar, Hangover, closed recently.  Hangover was a bar in Koreatown with an "All You Can Drink" (AYCD) policy.  For a fee, patrons could enjoy all the beer they wanted for up to four hours.  Hangover noted that California law prevented them from giving away free alcohol, and therefore the bar charged one penny for each pitcher.  You can learn more about Hangover here and here.

I don't know why Hangover closed, but when I saw their note about California law and their strategy of "selling" pitchers for one penny each, I became suspicious.  I therefore decided to launch into an investigation of California's wine, beer, and spirits law so that I could determine the legality of Hangover's practices.

Upon discovering the complexity of California's alcohol laws, I realized that this would not be a project I could finish in a single evening.  As I continue my journey through these intricate statutes, I will share the interesting things I discover.

Which brings me to tonight's discovery: California Business and Professions Code section 25622(a) which reads:

• Beer to which caffeine has been directly added as a separate ingredient shall not be imported into this state, produced, manufactured, or distributed within this state, or sold by a licensed retailer within this state.

I did a bit more research into the law and found Suni Li Alexander's article discussing the underlying legislation.  As I suspected, the law was enacted in 2011 to combat the Four Loko epidemic.  After some widely publicized incidents involving Four Loko, a caffeinated malt beverage, various states enacted legislation in an effort to restrict or outlaw the drink.  Section 25622 appears to be California's solution.

I discuss the statute's peculiarities after the jump.

Should Law Journals Publish Scholarship on the Third Amendment?

While I was writing my earlier post on Alan Butler's article, When Cyberweapons End Up on Private Networks: Third Amendment Implications for Cybersecurity Policy, I began wondering about the value of Third Amendment scholarship from the point of view of a law journal's articles editor.

Articles editors are the members of law reviews and journals who decide what submissions the journal should or should not accept for publication.  They have a number of different criteria to consider when determining whether to publish an article.  Most importantly (from a rankings perspective) how often will the article be cited?  Who will it be cited by?--by other law journals, or by judges?  How important is the subject of the article?  Is it getting a lot of news coverage?  Will the article itself get news coverage?  (For example: like this one?)  The list of considerations goes on.

In this post, I would like to list the reasons for and against publishing scholarship on the Third Amendment.  As somebody who is interested in researching this amendment, I will not pretend to be completely disinterested, although I would hope that my criticism of Butler's article illustrates that I can approach scholarship on this amendment in a less-than-cheerful manner.

So, without further adieu:

Reasons to Publish Third Amendment Scholarship

• Citation probability: there is an almost guaranteed core group of articles that will cite Third Amendment scholarship.  The group?  Other articles on the Third Amendment.  Any new paper on the Third Amendment must prove that the Third Amendment is not dead to the legal world.  To show this, the article will string-cite all the third amendment articles that the author can find - whether or not it relates to the issue the article addresses.  See, for example, footnote 14 of the previously-mentioned Butler article.
• Coverage: there is something quirky and fun about the Third Amendment.  People forget it exists, so when scholarship on it is published, people are naturally intrigued.  This means that it is more likely that people will react to the article -- either in the news or on blog posts, thereby increasing the coverage of the journal publishing the article.
• Influence: If a Third Amendment case were to surface, the judge overseeing the case would have very little case law to turn to in adjudicating the dispute.  This makes it more likely that the judge would turn to law review articles -- giving those journals publishing the articles potential citations in judicial opinions, or in the very least, some influence on the judge's decision-making process.
• Importance: a discerning editor may be able to find Third Amendment scholarship that is not only interesting, but also important.  This importance will most likely manifest from a historical perspective: examining past, significant events from a Third Amendment perspective.  For an example of an article that fits this description, see Tom W. Bell, "Property" in the Constitution: The View From the Third Amendment, 20 Wm. & Mary Bill Rts. J. 1243 (2012).

Reasons Not to Publish Third Amendment Scholarship

• Citation probability: notwithstanding the previously-discussed core group of articles that cite Third Amendment scholarship, the probability that an article on the Third Amendment will be cited by future scholarship is decidedly lower than the probability of other articles being cited.
• Importance: a common feature of lots of Third Amendment scholarship is that it will involve evaluation of hypothetical Third Amendment violations.  This is because there are not many real-world examples of Third Amendment cases.  While hypotheticals might be intellectually stimulating, their ultimate relevance may be limited to the realm of the hypothetical.
• Sloppiness: closely related to the importance concern, Third Amendment scholarship is characterized by authors who want to make their scholarly contribution sound relevant by claiming that a real world problem may be approached from a Third Amendment perspective.  As I discussed in my criticism of the Butler article, the specificity of the Third Amendment (constrained to soldiers, quartering, and houses), is a substantial obstacle to these endeavors.  Editors who accept these articles run the risk of their journal endorsing this type of sloppy legal analysis.
• Preemption: while there may be some interesting historical perspectives on the Third Amendment, or interesting cases where the amendment was once relevant, there is a very real danger that new scholarship on the Third Amendment has been preempted.  There are some folks out there who I would label "Third Amendment Scholars" (Tom Bell being one) who have written a decent amount on the Third Amendment and the limited areas of interest in Third Amendment scholarship.  (See, e.g. Bell's article, The Third Amendment: Forgotten, But Not Gone)
• Prestige: higher ranking journals that routinely publish articles on cutting-edge, important legal topics might find that publishing scholarship on the Third Amendment tarnishes their reputation.  While there is some value to quirky articles that raise interesting questions, these qualities, without something more, can only take an article so far.  High ranking journals that publish such articles might find themselves the target of some raised eyebrows (or whatever the equivalent is in the legal scholarship world).

Conclusion

Third Amendment scholarship is a complicated subject for articles editors.  Deciding whether to publish a Third Amendment article may well come down to the type of article the editor is on.  For instance, a newer journal that has not yet established a substantial citation reputation and that wants media exposure would do well to consider Third Amendment scholarship.  On the other hand, an old, highly ranked journal that regularly receives numerous, high quality submissions may wish to forego Third Amendment articles -- many of which are grounded in the hypothetical or use stretched analogies.

Whatever the answer is for articles editors deciding what to publish, I find the Third Amendment interesting and worthy of investigation, so don't be surprised if you see me discuss it again on this blog.  And who knows?  Maybe I will find a way around typical problems of stretched analysis and hypotheticals and end up throwing my own two cents into legal scholarship on the Third Amendment.

The Third Amendment and Cybersecurity: Quirky But Mistaken

The latest version of the American University Law Review focuses on law and cybersecurity issues.  I have not read through the articles here, but there seem to be some interesting topics.

One of the articles in this issue that I ran across and read while doing one of my own projects is Alan Butler's, When Cyberweapons End Up on Private Networks: Third Amendment Implications for Cybersecurity Policy.  It is available on the American University Law Review website here and on SSRN here.  Here is the abstract:

National security experts have discussed the threat of cyberwarfare for more than twenty years, and there have been a number of high profile cyber attacks over that period. The recent escalation of cyberconflict became clear last year when the New York Times discovered that the United States and Israel had developed and used a worm, known as “Stuxnet,” to disrupt Iranian nuclear facilities. This shot across the bow, along with the recent creation of the U.S. Cybercommand, indicates that the United States has the capability to conduct sophisticated offensive and defensive cyberoperations. Scholars in international law, national security law, and privacy law are now attempting to define the legal rules and boundaries of cyberwarfare. The Obama Administration has also made clear that protecting privacy and civil liberties is a critical component of the U.S. cybersecurity plan. But so far it is unclear what protections will be included.

This article takes a novel approach to identifying necessary civil liberties protections by analyzing U.S. cyberoperations under the Third Amendment. Three types of cyberoperations implicate Third Amendment interests: malware designed to disrupt industrial control systems, cyberespionage tools, and active defense (or “hack-back”) systems. All of these may affect innocent civilian systems, and the Third Amendment prohibits military intrusion into civilian spaces absent consent or legal authorization by Congress.

Based on the principles of the Third Amendment, this article identifies three issues that must be addressed regarding cybersecurity policy: authority, cooperation, and transparency. It concludes that Congress must establish the framework for authorization of cyberoperations that could affect civilian networks; that the private sector has an interest in a public-private collaboration to establish security standards and processes; and that any comprehensive cybersecurity strategy must provide for a transparent, public accountability system to address civil liberties impacts. The Cybersecurity Executive Order is a step in the right direction, but Congress must still establish clear rules governing executive action in this area.

I am always up for some discussion or scholarship on the Third Amendment.  I mentioned a modern case (and alluded to Butler's article) in a previous post, and as I mention in this future (!) post, there are some valid reasons for law journals to publish Third Amendment scholarship (though these reasons should be weighed against the reasons not to publish).

I'm not the only one who was intrigued by Butler's article, with reactions and mentions in the blog/legal commentary world here and here.  The commentators seem to agree with Butler's arguments.  I don't necessarily blame them; the Third Amendment is so rarely mentioned or considered in constitutional law scholarship that any article about it seems delightfully quirky.

Unfortunately, behind the quirky facade of Butler's article there lies a flawed and ultimately unsuccessful argument.  I will dismantle it after the jump.

Forthcoming Essay: Search Engine Liability for Autocomplete Defamation: Combating the Power of Suggestion

I have uploaded the current version of my forthcoming essay, Search Engine Liability for Autocomplete Defamation: Combating the Power of Suggestion, on SSRN.  The essay will appear in the Fall issue of the Illinois Journal of Law, Technology & Policy.  Here is the abstract:

Several online search engines use autocomplete features that display search suggestions as users type search queries. This Essay investigates the potential for search engine liability for defamatory statements that are displayed through their autocomplete search suggestions. This Essay describes the technology involved, outlines potential defamation claims against search engines, and notes the obstacle presented by the Communications Decency Act (CDA). Recent legal developments limit the immunity that the CDA would typically provide to search engines and this Essay explores how prospective plaintiffs may take advantage of these developments. This Essay first discusses a potential argument from Fair Housing Council v. Roommates.com, LLC, but concludes that policy implications of this argument ultimately undermine its credibility. This Essay then turns to the less-explored case of Batzel v. Smith and concludes that Batzel provides a narrower, more direct argument against search engine immunity. This Essay concludes that prospective plaintiffs have a strong argument against search engine immunity. This removes a critical obstacle in the path of defamation claims.

I have posted previously on the immunity provided to websites by section 230 of the CDA here and here.

Due Process is a Good Idea Because...

...it helps us avoid situations like this:

[A] man was arrested because he was drinking tea in a "suspicious manner" at a road side stall...

The law permitting preventative detention of somebody an officer thinks is about to commit a crime probably contributed to Vijay Patil's arrest.  Even with that law in place, Justice Patel of the Bombay High Court was appalled.  The Times of India reports:

The judgment penned by Justice Patel said, "This is bewildering. We were unaware that the law required anyone to give an explanation for having tea, whether in the morning, noon or night. One might take tea in a variety of ways, not all of them always elegant or delicate, some of them perhaps even noisy. But we know of no way to drink tea 'suspiciously'."

He added, "The ingestion of a cup that cheers demands no explanation. And while cutting chai is permissible, now even fashionable, cutting corners with the law is not."

The prosecutor tried to justify the arrest by pointing to an extensive record of proceedings against Patil.  The High Court pointed out that this record was irrelevant with regard to whether Patil was about to carry out imminent criminal activity.  Also, most of those proceedings, like this one, ended in acquittals.

(H/T: BBC: News From Elsewhere)

Pirates Need to Do Something: A Note on Veggie Tales

My previous post on Greenpeace got me thinking about pirates and piracy in general, which in turn caused my thoughts to wander to the days of my childhood when being a pirate sounded like an enjoyable and feasible career option.  Not all pirates seemed romantic, however, especially "The Pirates Who Don't Do Anything."  These pirates were originally described in this Veggie Tales song:

I have learned that the band, Reliant K, released a version of this song, but I'm not at all familiar with the band or the song so I'll leave you to figure out which version is better.

My foray into piracy law for purposes of my last post made me wonder how the Pirates Who Don't Do Anything could ever exist.  As the Ninth Circuit noted in Institute of Cetacean Research v. Sea Shepherd Conservation Society, Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS) defines piracy as any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
           (i) on the high seas, against another ship or aircraft, or against persons or property on                    board such ship or aircraft;
           (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any                  State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

This definition of piracy caused me to question the Veggie Tales song.  UNCLOS clearly indicates that pirates must do something, namely engage in illegal violence, detention, or depredation, in order to be defined as pirates in the first place.  If an individuals just "stay home and lay around," they cannot engage in piracy.

Veggie Tales may not be entirely without an argument here, however.  Eugene Kontorovich notes in his article, The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation, (45 Harv. Int'l. L.J. 183, 2004) that piracy has historically been a universal offense in the international law context.  He further notes in this article that the universal, historic punishment for piracy was death.  The Restatement (Third) of Foreign Relations Law, section 404, comment f states, "a universal offense is generally not subject to limitations of time," indicating that there is no statute of limitations on universal offenses (Judge Kleinfeld pointed this out in his dissent in the later-vacated Ninth Circuit case, Sarei v. Rio Tinto, PLC, 671 F.3d 736, 817 n.128).

The upshot of all of this is that while the Pirates Who Don't Do Anything may not currently do anything but stay home and lay around, if they ever engaged in piracy before, they may still be prosecuted for that piracy.  Notably, none of the singing vegetables ever deny that they ever engaged in illegal violence, detention, or depredation.

If carrying out an act of piracy leaves somebody with a permanent threat of prosecution for that offense, I think that this person (or vegetable) is well within his or her rights to label himself or herself a pirate.

New Online True Threats Case from the Third Circuit

The case is United States v. Elonis, and the opinion is available here.  The opinion affirms Anthony Elonis' conviction under 18 U.S.C. § 875(c) making it a crime to "transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another"

The First Amendment issue is the same as the one in Jeffries v. United States, a case I posted about here: whether prosecution for true threats requires proof of the defendant's subjective intent to threaten the victim.  The Third Circuit followed the lead of the vast majority of circuits that have addressed the issue and held that no proof of subjective intent is required.

Elonis' argument was similar to that advanced by the defendant in Jeffries.  Elonis cited Virginia v. Black 538 U.S. 343 (2003) - the most relevant Supreme Court case on the issue - and pointed out that in this opinion, the Supreme Court stated that:

“True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals (emphasis added)

Elonis argued that the Supreme Court's inclusion of the "means to" language indicated an intent to only include statements that speakers intended to be threats.  The Third Circuit disagreed:

we read “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence” to mean that the speaker must intend to make the communication. It would require adding language the Court did not write to read the passage as “statements where the speaker means to communicate [and intends the statement to be understood as] a serious expression of an intent to commit an act of unlawful violence.” This is not what the Court wrote, and it is inconsistent with the logic animating the true threats exception. (citations omitted)

The court then points out that the lower First Amendment protection for true threats is based on the harm that these threats cause and that:

Limiting the definition of true threats to only those statements where the speaker subjectively intended to threaten would fail to protect individuals from “the fear of violence” and the “disruption that fear engenders,” because it would protect speech that a reasonable speaker would understand to be threatening.

As I mentioned in my post on Jeffries I think that this approach is correct, especially in the online context where individuals may claim that they did not intend their statements to be threats because it is normal to say all sorts of strange things online.  Requiring subjective intent will make it easier to avoid prosecution for statements that cause real harm.

Lastly, this case is bad news for Jeffries, who is trying to get the United States Supreme Court to hear his case.  With the Third Circuit joining the vast majority of circuits that have addressed this issue (and with the only circuit reaching a different conclusion being the Ninth Circuit), the circuit split that Jeffries is trying to emphasize is now even shallower after Elonis.

(H/T: Howard Bashman at How Appealing)

Are Greenpeace Activists Pirates?

The Guardian and BBC report that Russian authorities boarded the Greenpeace ship, the Arctic Sunrise, and arrested a number of activists.  I am not immediately clear about whether Russia's military was involved -- The Guardian simultaneously reports that it was the Russian "military" and "coastguard" but the BBC reports that it may have been Russia's "internal security service," the FSB.

Russia claims that it is arresting the activists for crimes arising from a previous protest where members of Greenpeace boarded a Russian oil drilling platform to protest the environmental impact of the drilling operation.

This whole affair reminded me of the Ninth Circuit's opinion in Institute of Cetacean Research v. Sea Shepherd Conservation Society (2013 WL 2278588).  I learned about that case from Kenneth Anderson's post here and from Eugene Kontorovich's in-depth commentary on the ruling here.  In this case, the Ninth Circuit determined that Sea Shepherd's actions of "Ramming ships, fouling propellers and hurling fiery and acid-filled projectiles" was piracy under the United Nations Convention on the Law of the Sea (UNCLOS) because these were violent actions carried out for private ends.  The court concluded that the actions were violent even though property was the target of these activities.  The court further held that "private ends" included actions taken with environmental activism goals -- "private" simply required that the goals be nongovernmental.

For those who are interested in legal issues relating to piracy (who isn't!?), check out Kontorovich's articles on the subject here, here, and here.  

With Institute of Cetacean Research in mind, were Greenpeace's actions piracy?

I don't think so, at least not based on the facts I have seen in the stories I've read.  Greenpeace's actions seemed to be nothing more than an attempt to board an oil platform.  While weapons were displayed, these weapons all seemed to be in the hands of Russian authorities aboard the platform.  I have no idea how concepts like trespass work on the high seas, but in the absence of "violence or detention or any act of depredation," Greenpeace's actions do not appear to be piracy, at least not under UNCLOS.

Online Threats and the First Amendment

Wired reports about a petition for certiorari currently pending before the Supreme Court.  The case is Jeffries v. United States.  Here is Jeffries' petition for certiorari and here is the government's brief in opposition.  The Sixth Circuit's opinion is here.  The question presented, as framed by Jeffries is:

Whether, in light of the plain meaning of “threat” and the constitutional rule of Virginia v. Black, 538 U.S. 343 (2003), conviction under Section 875(c) requires proof of a subjective or specific intent to threaten.

Jeffries posted a video online of him playing the guitar and singing about killing the judge and other people involved in a ten-year custody dispute with his ex-wife.  Jeffries posted this video on Youtube but made sure to be diligent about spreading his message.  According to the government's brief:

Petitioner posted a link to the video on his Facebook wall and sent links to 29 Facebook users, including a Tennessee State representative, a television news station, and an organization devoted to empowering divorced fathers as equal partners in parenting.

The issue that Jeffries raises is certainly an interesting one from a First Amendment perspective.  Commentators have puzzled about the issue, with one of the most recent examples I've seen being Leslie Kendrick's article.  (Full Citation: Leslie Kendrick, Speech, Intent, and the Chilling Effect, 54 William & Mary L. Rev. 1633 (2013).  Orin Kerr also blogged about the case when the Sixth Circuit decided it, noting Judge Sutton's reservations about how common interpretations of the statute (18 U.S.C. §875(c)) essentially disregard whether intent is required for a conviction.

I think that the circuit split on this issue is far less significant than Jeffries makes it out to be, and the Sixth Circuit's opinion is in line with the prevailing approach of the circuits that have dealt with the issue.  Accordingly, I think that it is unlikely that the Supreme Court will grant this petition.

I think that Jeffries' attorney's statements in defense of his client point out why an intent requirement may be a bad way to construe the threat statute.  Wired reports:

“We think its potentially quite a significant case. People say things in the online world that they don’t mean seriously,” said the veteran’s [Jeffries'] attorney, Chris Rothfeld. “Second, it’s difficult to tell in the online world how a statement is intended. People say things and write things and they are read in an entirely different context.”

This statement shows why an intent requirement would make it a lot easier to harass people online.  Defendants who explicitly threaten the well-being of others could claim that they were not being serious.  While laws that criminalize online harassment are often poorly drafted and overbroad (see e.g., this), there should still be room to prosecute those who threaten to cause serious harm to others.

And if the internet makes a difference, this difference is accounted for by the current interpretation of the statute. Jeffries' attorney notes that statements online are "read in an entirely different context."  To be convicted under the statute in this case, the defendant's threats must be such that a reasonable person would "take the statement as a serious expression of an intention to commit bodily harm."  The statute is further limited by requiring that the threat be made to achieve some goal through intimidation.

Statements made on the internet can cause real harm and adequately narrow statutes that allow for the prosecution of these statements are crucial for combating this harm.  18 U.S.C. §875 is one such statute, and requiring proof of intent in these cases would hinder the legitimate prosecution of true threats.

The Plow Cannon

Lowering the Bar posts about an 1862 patent for the "Plow Cannon."

There really isn't much more I can say, but here is part of the invention's description:

The object of our invention is to produce a plow equal, if not superior, in point of strength and lightness as to that implement as ordinarily made, and at the same time to combine in its construction the elements of light ordnance, so that when the occasion offers it may do valuable service in the capacity of both implements.

Unfortunately, I don't think that this device was ever in common use, so I doubt that it would receive much protection under the Second Amendment.

Gideon and the Complex Problems of the Criminal Justice System

UCLA Law has been sending out notifications informing students that we should apply for the Gideon Fellowship.  The application form for this fellowship indicates that UCLA has partnered with Gideon's Promise, an organization that focuses on promoting and improving indigent representation in the South.  Students who are accepted into this fellowship will enter a training program with Gideon's Promise and then be placed by that organization in one of several southern Public Defender's offices.

My summer work experience throughout law school has been entirely centered on the prosecution side of criminal law, so I am not sure if I would be viewed as a particularly credible candidate for this fellowship.  I am familiar with the criticism that prosecution-oriented students seek to become part of an oppressive system that all too often disregards the rights and circumstances of defendants.

Moreover, I suppose that I am a bit jaded when it comes to Gideon because I recently read this article by Paul Butler.  The citation is: Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L. J. 2176 (2013).  Here is the abstract.

A low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The critique of rights suggests that rights are indeterminate and regressive. Gideon demonstrates this critique: it has not improved the situation of most poor people, and in some ways has worsened their plight. Gideon provides a degree of legitimacy for the status quo. Even full enforcement of Gideon would not significantly improve the loser status of low-income people in American criminal justice. 

This article is one of many Gideon-focused articles in Yale's symposium issue commemorating the fiftieth anniversary of the landmark ruling that the Sixth and Fourteenth Amendments required states to provide counsel to indigent criminal defendants.  While I think that Butler's article makes some controversial claims, he makes it clear that a Gideon-centered approach to systematic injustice in criminal law is at best incomplete, and at worst, destructive.

Unless there are massive developments on the legislative level, or a fundamental reworking of constitutional doctrine, the most important place to seek change is at the level of the police and prosecutors.  Police have wide discretion when it comes to enforcing the law and arresting individuals, and prosecutors often have a great deal of discretion when it comes to determining whether to prosecute and how high of a sentence to seek.  While some nicely-named commentators have argued for the removal of discretion in the policing process, this removal may be politically unfeasible and can probably only proceed in a step-by-step manner.

In the meantime, students, academic organizations, and programs that care about defendants should not alienate students interested in criminal prosecution - they should instead encourage these students to pursue their career goals while keeping in mind the circumstances of those they prosecute.  Defense-oriented individuals and organizations should work to (non-condescendingly) educate those on the side of the prosecution, even as they oppose them in court.

I have been trying to do my part at keeping an open mind.  After my summer with the district attorney, I wrote my rather defendant-friendly paper on self-defense.  During my summer at the attorney general's office, I wrote a brief where the strongest defense argument I needed to answer was one I raised in my own brief after I discovered it in my own research on the case.  Hoping to remain fair and balanced, however, I have balanced out my defense-oriented briefing and blog posts by writing an essay where I strongly favored prosecution of poor, unaware defendants.

Public defenders are an important part of the system - and Butler recognizes this even while he criticizes Gideon.  One must always keep in mind, however, that defenders are only a part of the system, and a disproportionate focus on this part may fail to affect any meaningful, systematic change in the long run.

Senator Rand Paul on Restoring Felons' Rights

I will say at the offset that Senator Rand Paul is one of my least favorite politicians.  I feel this way about Senator Paul because he has a peculiar tendency to say things about law that make me cringe.

Take Senator Paul's stance on drones.  Senator Paul was a fervent critic of the Obama Administration's use of drones to target and kill members of Al Qaeda.  He even took to the floor of the Senate and led a 13-hour filibuster on the subject, arguing that it is wrong for drones to kill people without regard for their due process rights.  Paul lamented the administration's claim that drones would not be used unless there was an "imminent" threat - arguing that this terminology was overly permissive.

I suspected, however, that Senator Paul was not really engaging with the legal issues - and my suspicion was confirmed when in a later interview, he said:

I’ve never argued against any technology being used when you have an imminent threat, an active crime going on. If someone comes out of a liquor store with a weapon and fifty dollars in cash, I don’t care if a drone kills him or a policeman kills him. 

While I thought that Senator Paul cared about meaningful limitations on government police power, it appears that he got a bit too distracted by the creepiness of drones to put forth consistent arguments.

Despite my background opinions, however, I recently learned that not all of Senator Paul's points are rubbish.  He recently made some other interesting remarks that are much less irritating than his other points on drones or (God forbid) the Second Amendment.

Via the Sentencing Law and Policy Blog, I learned that Senator Paul gave a speech in Louisville. The Courier-Journal reports on what Senator Paul said regarding the rights of felons who have completed their sentences:

“I am in favor of letting people get their rights back, the right to vote ... Second Amendment rights, all your rights to come back,” he said. “I know of one man who 30-some-odd years ago had pot plants in his closet in college, got a felony conviction in college, still can’t vote, and it’s plagued him his whole life trying to get work.”

I think that Senator Paul's point on the right to vote certainly has merit, and his Second Amendment claim (while potentially inaccurate given the limitations listed in District of Columbia v. Heller) may at least get people thinking about whether people who have been convicted of a crime - yet who have completed their sentence - are really too dangerous to be given firearms.

And despite my typical dislike of his remarks, Senator Paul's technique of juxtaposing the issue of felon rights with the war on drugs is probably the strongest way for him to make his case.

Pettys on Iowa's Strange Relationship With its Supreme Court

When people in California ask me what Iowa's politics are like, I tell them that the short answer is, "it's complicated."  Through On Brief, I learned of an article by Todd E. Pettys that would provide a pretty thorough long answer.  The article's title is Retention Redux: Iowa 2012.  Here is the introduction:

On April 3, 2009, the Iowa Supreme Court’s seven members ruled unanimously in Varnum v. Brien that the state’s statutory ban on same-sex marriage violated the equality clause of the Iowa Constitution. Nineteen months later, three of those justices—Chief Justice Marsha Ternus, Justice Michael Streit, and Justice David Baker—lost their jobs when Iowa voters denied their bids for retention. It was a remarkable victory for social conservatives and their leaders, including Iowa for Freedom (an anti-retention organization founded by Iowa businessman Bob Vander Plaats, who had recently suffered his third defeat in a Republican gubernatorial primary), the Mississippi-based American Family Association, and the New Jersey-based National Organization for Marriage, among others. It was a staggering defeat for the three ousted justices and for those who believed it was inappropriate to use the retention election as an opportunity to express disapproval of Varnum.

Things played out differently when a fourth member of the Varnum court—Justice David Wiggins—stood for retention in November 2012. Fifty-five percent of those casting ballots voted to retain Justice Wiggins, roughly the same percentage that voted to remove his three former colleagues two years earlier. What accounts for that difference in the Varnum justices’ political fortunes? I offer answers to that question here.

Pettys tells a pretty thorough story about the Varnum reaction, and covers a number of factors that explain the eventual turnaround in voter opinion.  I think that it is also a good illustration of Iowa's politics and how the variety of opinions in the state creates policy outcomes all over the political spectrum.

Upcoming Scholarship on Re-Conceptualizing Procedures as Punishment

Staying on the theme of my previous post, I thought I might as well take the opportunity to do a little bit of shameless promotion for the UCLA Law Review.  There are a couple of upcoming articles that do a good job of arguing that non-punitive procedural measures should be re-conceptualized as punitive.

Jonathan Hafetz's upcoming article is Detention Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of Criminal Sentencing.  Here is the abstract:

While there has been a great deal of focus on who may be detained in the armed conflict with al Qaeda and associated forces, (the so-called “war on terror”), there has been relatively little consideration of how long individuals may be held. The Article provides a new approach to this issue. It argues that review of long-term terrorism detentions should be addressed not merely through application of the laws of war, which permit detention until the end of the conflict, but should also draw upon principles rooted in criminal sentencing. 

The Article makes two main points: first, that criminal sentencing highlights the value of a judicial proceeding focused on the length of detention; and second that the United States should develop a detention standard that incorporates a broader range of factors about an individual, his background, and past conduct to assess whether he should continue to be held. This standard may be utilized whether review of continued detention takes place in a judicial or an administrative proceeding. 

The Article not only seeks practical solutions to the seemingly intractable problems posed by Guantanamo. It also attempts to re-frame the larger debate surrounding the war on terrorism, by demonstrating how traditional legal concepts, such as those governing the detention of combatants, must be adapted given the nature of the armed conflict the U.S. is waging.

César Cuauhtémoc García Hernández's upcoming article is Immigration Detention as Punishment.  Here is the abstract:

Courts and commentators have long assumed, without significant analysis, that immigration detention is a form of civil confinement merely because the immigration proceedings of which it is part are deemed civil. This Article challenges that deeply held assumption. It harnesses the Supreme Court’s instruction that detention’s civil or penal character turns on legislative intent and, buttressed by theoretical understandings of punishment, contends that immigration detention — apart from the deportation that often results — itself constitutes penal incarceration. In particular, legislation enacted over roughly fifteen years in the 1980s and 1990s indicates a palpable desire to wield immigration detention as a tool in fighting the nation’s burgeoning war on drugs by sanctioning and stigmatizing criminal behavior. Indeed, the immigration detention system that has developed has accomplished Congress’s punitive goal: immigration detention is experienced as severe and its occupants viewed as dangerous. Remaining true to the Court’s guidance to draw formalist boundaries between civil and penal confinement, immigration detention should be conceptualized as punishment. Rather than subjecting immigration detention to the constitutional limitations imposed by criminal procedure, this Article contends that, learning from the nation’s failed experience with mass penal incarceration, policymakers should step back from immigration detention’s punitive origins and create a truly civil immigration detention system.

Both of these articles argue that procedures that are currently deemed to be non-punitive should be considered punitive in light of practical realities and the underlying motivations for the laws.  The articles do a good job of exploring the realities and motivations for these laws and present convincing cases that viewing these laws as non-punitive requires selective, if not deceptive, observation of the facts.

Juvenile Sex Offender Registration and the Eighth Amendment

Via the CrimProf Blog, I learned about Catherine Carpenter's article, Against Juvenile Sex Offender Registration.  Here is the (rather lengthy) abstract:

Imagine if you were held accountable the rest of your life for something you did as a child? 

This is the Child Scarlet Letter in force: kids who commit criminal sexual acts and who pay the price with the burdens and stigma of sex offender registration. And in a game of “how low can you go?,” states have forced children as young as nine and ten years old onto sex offender registries, some with registration requirements that extend the rest of their lives. 

No matter the constitutionality of adult sex offender registration – and on that point, there is debate – this article argues that child sex offender registration violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Once a sex offender, always a sex offender is not an apt adage when dealing with children who commit sexual offenses. Low recidivism rates and varied reasons for their misconduct demonstrate that a child’s criminal sexual act does not necessarily portend future predatory behavior. And with a net cast so wide it ensnares equally the child who rapes and the child who engages in sex with an underage partner, juvenile sex offender registration schemes are not moored to their civil regulatory intent. 

Compounding the problem is mandatory lifetime registration for child offenders. This paper analogizes this practice to juvenile sentences of life imprisonment without the possibility of parole, which the Supreme Court declared unconstitutional in Miller v. Alabama and Graham v. Florida. This article argues that mandatory lifetime registration applied to children in the same manner as adult offenders is cruel and unusual punishment because it violates fundamental principles that require sentencing practices to distinguish between adult and child offenders. 

Scrutiny of child sex offender registration laws places front and center the issue of what it means to judge our children. And on that issue, we are failing. The public’s desire to punish children appears fixed despite our understanding that child offenders pose little danger of recidivism, possess diminished culpability, and have the capacity for rehabilitation. In a debate clouded by emotion, it is increasingly clear that juvenile sex offender registration is cruel and unusual punishment.

Carpenter does well to draw attention to this issue, and I think that it is an important problem that people should know about.  Nevertheless, I think that the article tries to do too much, and ends up giving short shrift to the problem of whether sex offender registration constitutes punishment in the first place.  

Carpenter is fighting an uphill battle from the beginning, since most courts addressing the issue of sex offender registration find that registration is a non-punitive measure that is in place for purposes of keeping track of those convicted of sex offenses.  While I think that this approach overlooks the stigma associated with this sort of registration, Carpenter needs to do more to establish that registration is punishment before she gets into the Eighth Amendment analysis.  As the paper stands, there is some analysis on the punishment, but it is buried underneath the Eighth Amendment arguments - all of which assume the existence of punishment.

That said, Carpenter's discussion of this issue is both eye-opening and disturbing - and she points to a problem that courts or legislators should address (though from a political view, this is highly unlikely).  If the Carpenter change's the paper to present a better-organized, thorough argument as to why sex offender registration is punishment, I think that the overall argument will be greatly strengthened.

How to Use a Dictionary

Via the Legal Writing Prof Blog, I learned of Justice Antonin Scalia's and Brian Garner's recent article, A Note on the Use of Dictionaries, in the Green Bag.  In this Article, Justice Scalia and Garner describe general principles on which one should rely when using dictionaries, and they provide a list of the most authoritative dictionaries.

One principle I realized I had never thought enough about was how to approach dictionaries' ordering of terms.  Back in my debate days, I was simply taught never to argue that one definition is more authoritative than another because it is listed first in the dictionary.  In their article, Justice Scalia and Garner point out that it's not quite that simple.  They write:

You must consult the prefatory material to understand the principles on which the dictionary has been assembled. The ordering of senses provides a classic example. Although many people assume that the first sense listed in a dictionary is the “main” sense, that is often quite untrue. Some dictionaries list senses from oldest in the language (putting obsolete or archaic senses first) to newest. Others list them according to current frequency. Using a dictionary knowledgeably requires a close reading of the principles discussed at the outset.

Surely enough, I found that the Oxford American College Dictionary (a dictionary that is not listed in the article, but the only dictionary I had on hand) describes its system of preference as listing a "core" meaning of the word, followed by "subsenses" that logically follow.  Unfortunately, the discussion of these meanings does not go into much more depth, leaving me confused as to what a "core" is and why it is important.  It sounds important, however, (more important than a "subsense" at least).

If any moot court problem developer were to read this article, perhaps they would consider applying what they learned.  It would be interesting if a problem developer were to write a scenario involving a question of statutory interpretation, provide a number of dictionary definitions, the prefatory section of each dictionary, and Justice Scalia and Garner's article on dictionary usage.  This would at least require employing brief-writing techniques that most legal writing courses don't manage to cover.

Of course, any problem developer must keep in mind that judges must also be able to engage with the problem -- and the notion of asking questions about dictionary usage may seem less than fascinating to most.  Still, it is never too early to speculate.

Second Amendment Split in Authority Deepens

At Volokh Conspiracy, Eugene Volkh posts about the Illinois Supreme Court's unanimous decision striking down sections 24-1.6(a)(1), (a)(3)(A) of Illinois's aggravated unlawful use of weapons statute.  These sections prohibited individuals from carrying loaded, accessible firearms.  The statute also prohibits individuals from carrying stun guns or tasers that are "loaded" and accessible -- which would presumably ban the carrying of these weapons as long as they are functional.

Volokh summarizes the split in authority:

This deepens the lower appellate court on split on whether the Second Amendment secures a right to carry a gun in public. Most of the decisions say “no.” See, e.g., Kachalsky v. County of Westchester, 701 F.3d 81, 96 (2d Cir. 2012); Woolard v. Gallagher, 712 F.3d 865 (4th Cir. 2013); People v. Dykes, 209 P.3d 1, 49 (Cal. 2009); Little v. United States, 989 A.2d 1096 (D.C. 2010); People v. Dawson, 934 N.E.2d 598 (Ill. App. Ct. 2010); Williams v. State, 10 A.3d 1167 (Md. 2011); Commonwealth v. McCollum, 945 N.E.2d 937 (Mass. App. Ct. 2011); People v. Perkins, 880 N.Y.S.2d 209 (App. Div. 2009). Indeed, McCollum went so far as to say that possessing a gun in someone else’s home can be punished, without regard to whether the resident has allowed or even asked the gun owner to bring the gun.

On the other side are Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), plus now the Illinois Supreme Court decision, Ex parte Roque Cesar Nido Lanausse, No. KLAN201000562 (P.R. Cir. 2011), http://www.volokh.com/?p=46217, which seems to hold the same, and People v. Yanna, 824 N.W.2d 241 (Mich. Ct. App. 2012), which so states, albeit in dictum.

Because of this split, I expect that if the state of Illinois chooses to petition for certiorari, there would be a good chance of the U.S. Supreme Court’s agreeing to review the case. But Illinois decided not to petition for review fromMoore v. Madigan, so I suspect they wouldn’t do so here.

I posted about the split in authority on the carrying of firearms here.  This case deepens the split, and it will be interesting to see if other jurisdictions end up taking the Illinois Supreme Court's approach.  While a United States Supreme Court grant of certiorari may not be immediately forthcoming, the current split may continue to perpetuate itself if courts interpret the split to indicate that there is no clear answer on the issue.

Alternative Law School Models

I recently posted about the debate over whether law school should be two years or three years.  As I point out in that post, I think that the simple, two-year proposal is a bit too blunt of an instrument, so here, I aim to evaluate alternate models for law school.

The Medical School Model

Some commentators propose that law school should change so that it reflects the structure of medical school, with students spending their third year focusing on clinical work and real-world experience.  Vincent Rogeau, the dean of Boston College Law School, is a proponent of this approach.

I generally am wary of this approach because I think that it commonly overemphasizes the desires of employers rather than what is good for students.  Legal employers lament a dearth of "practice-ready" graduates, claiming that the law school curriculum is overly theoretical and that the burden of providing practical training falls on employers.  While this is a valid concern, the solution of devoting the third year to clinical work seems to shift the burden of training from employers to students.  Students are currently paid by their employers to learn the realities of practice and shifting this training to the third year of law school forces students to pay for it themselves in the form of tuition.  Students would be better off if they simply graduated after two years.

Rogeau's proposal suggests that this change could take place in a manner that balances the interests of the students and employers.  If students are given a stipend during their third year, or if their tuition is reduced, this would shift some of the cost of the system away from the students.  This sort of nuanced approach to the clinical year may be a solution worth exploring.

Law School as an Undergraduate Degree

Other commentators suggest that law should no longer be a graduate degree and should instead be offered at the undergraduate level.  Stephen Bainbridge argues for this reform, noting that the idea has historical and international support.  He points out that this approach would leave students with less overall debt and a legal education could still be useful to undergraduate students who end up not practicing law.

Daniel Rodriguez, the dean of Northwestern Law, responds by arguing that the legal field is becoming increasingly advanced and specialized, and that relegating law to the undergraduate level would leave students ill-prepared to confront this environment.  Rodriguez also notes the pressure on foreign law students to obtain graduate-level law degrees.  I would add that the law-as-undergraduate degree approach would make becoming a patent lawyer extremely difficult -- as students would presumably need to obtain a science degree and a law degree simultaneously - or obtain two undergraduate degrees at different times.  Additionally, without the additional filter of law school, this reform would probably lead to an even greater oversupply of lawyers.

Ben Barros offers an interesting take on this solution: offer courses at the undergraduate level that count for law school credit.  This would be a less-radical change, law school would remain to control the supply of lawyers, this approach would reduce costs for students, and the approach would help students specialize more effectively once they are in law school.  A danger of the approach that I don't think Barros fully appreciates is that this would lead to very strange dynamics on the law school application level.  Students who take law school courses at the undergraduate level would have a substantial advantage because law schools have a better idea of how they will perform and because these students have indicated that they are dedicated to studying law.  This would harm students who attend undergraduate institutions without access to undergraduate law courses -- giving students at liberal arts colleges or universities without law schools a disadvantage when they apply to law schools.

An Optional Third Year

Orin Kerr suggests that it should be possible for students to obtain a law degree in two years, but to have the option of attending for a third year.  Kerr makes this suggestion in light of Eugene Volokh's point that three years of classes may be necessary to gain an effective knowledge base for a career in general litigation.  Kerr notes that depending on students' interests, they may be interested in a third year of studies if they wish to specialize in a certain area of law.  On the other hand, students can graduate in two years if they do not wish to continue taking courses in a variety of areas, as Volokh suggests.

This approach may give an advantage to wealthier students who do not find it burdensome to take three years of classes.  With their heightened knowledge base, these students would be more appealing to employers than two-year students.  On the other hand, this problem may not be too severe, since many large law firms make hiring decisions at the end of the summer following students' second year.  This suggests that firms are not particularly concerned with the additional knowledge that students may gain in their third year.

Ultimately, I have not decided on what model works best.  A common theme I see, however, is that each approach has drawbacks that can be mitigated by tweaking the model.  Any alternate model must be adopted with caution and attention to the consequences.  New approaches must remain flexible so that they can adapt as their consequences become apparent.

Sullivan on the Asterisk Footnote

I stumbled across this article the other day and learned a great deal.  The citation is:  Charles A. Sullivan, The Under-Theorized Asterisk Footnote, 93 Georgetown L. J. 1093 (2005).  Here is the abstract:

The asterisk footnote, although universally deployed in legal scholarship, has been equally universally ignored by the academy as a focus of scholarly interest. As I use the term, asterisk footnote refers to the note (usually, but not always, the first one) that, inter alia, identifies the author and (usually, but not always) is indicated by an asterisk. This footnote is used by every scholar but analyzed by none. This scholarly inattention is shocking given the remarkable growth and development of the asterisk footnote over the last 40 years. This Article is the first effort to address this gaping lacuna in scholarship. It is my hope (perhaps not my expectation) that it will launch a wave of asteriskian studies that will throw new light on the legal academy. 

In addition to tracing the history of the asterisk footnote from its origins in the primeval scholarly ooze to its present exalted status, the Article explores its significance for the legal academy on topics ranging from wholesale acknowledgements to dedications to pets. It also considers what light the asterisk footnote can throw on questions as diverse as the proper etiquette for tributes and the democratization of scholarship.

Sullivan's study of the asterisk footnote is the most thorough treatment of the subject I have ever seen.  He is not kidding when he says he will talk about dedications to pets, as he lists several examples of these dedications.  I was pleased to notice that one of the most peculiar of these footnotes was from a UCLA publication.  The footnote mentioned that "Robert Seibel and his wife own four llamas and an alpaca among their menagerie of pets."  (Robert F. Seibel, Do Deans Discriminate?: An Examination of Lower Salaries Paid to Women Clinical Teachers, 6 UCLA Women's L. J. 541).  This sentence followed dedications to people who had helped with the article and had no apparent connection to the subject matter.

Sullivan points out that sometimes authors go overboard in thanking people for support in the asterisk footnote, noting an extreme example where the authors mentioned "fifty-one named individuals, twenty-three conferences or workshops (in at least three countries), and thirty-four research assistants."  (citing Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 Harv. L. Rev. 430 (2000)).  Eugene Volokh has raised the question of whether authors overinclude names in an attempt to persuade articles editors.

I had never even considered trying to impress articles editors with the asterisk footnote.  The most names I ever referenced in an asterisk footnote was seven.  The only professor I thanked in that list was added after the paper had been accepted (the acceptance added a bit of legitimacy to my request for advice on a zombie law paper).

I have yet to develop my own personal philosophy on asterisk footnotes, but I find The Green Bag's author note policy inspiring:

Gratitude to research assistants is nice.  Colleagues who make major contributions should share the by-line; those who help in small ways should be recognized in something printed by Hallmark, not the Green Bag.

Law School: Two Years or Three Years?

Back in August, President Obama remarked that law school should be two years instead of three, noting that such an approach would be more cost-effective for students.  This is hardly a new idea -- papers and books have been written on the subject, and anybody who has even considered the notion of going to law school has heard the old saying, "The first year scares you to death, the second year works you to death, and the third year bores you to death."

Bruce Ackerman recently responded to Obama's statement with an op-ed in the Washington Post and a follow up today at Balkinization.  Ackerman argues that two years will "lobotomize the profession" and lead to a class of lawyers who are unable to verify the testimony of experts due to sub-par training in "social science" and "statistics."  Ackerman makes this point in various ways.  Here's part of what he said in the Post:

The predictable outcome will be massive professional retreat. Increasingly, lawyers will become secondary figures who prepare the way for “experts” to present the crucial arguments before administrative agencies, courts and legislatures. Decision-makers with two-year law degrees will proceed to rubber-stamp the expert testimony that seems most impressive because they aren’t prepared to test it in a serious way.

In contrast, if law schools redeem the promise of a three-year curriculum, their graduates will have something valuable to contribute to the larger conversation. They will never rival experts in their command of statistics and social science, but so long as they understand the basics they will be in a position to integrate technical insights into a broader understanding of the fundamental values of the American legal tradition.

And here is the similar portion of his post at Balkinization:

America’s law schools must train their students in the use and abuse of statistics, economics, and other social sciences or face increasing irrelevance in the formulation and implementation of public policy. The challenge is to integrate these technocratic skills into an historically informed, and philosophically sophisticated, understanding of the legal tradition. Otherwise, the profession will be pushed to the sidelines in an increasingly technocratic age.

Such an education requires a full three years of study.  It is too easy to deflect this point by claiming that most lawyers will not require such training, since they will be engaged in more humdrum professional activities. First, consider that these skills will increasingly be required by city councilman and leaders of state and local agencies, not only lawyers engaged in high-powered practice in Washington or Wall Street.  Even more important, it is simply impossible to determine which law students will take on leadership roles in the next generation.  Many lawyers from “elite” law schools will turn out to be drones; many  from “second” or “third” tier places will turn out to be leaders.  A two year curriculum promises to lobomotize the profession by 2050.

I do not think that Ackerman has as strong of a case as he seems to claim, mainly because many law schools do not systematically teach or require classes in social science or statistics.  This should not be a surprise to anybody, as it is very much in vogue to disparage students' lack of understanding of important issues when it comes to criticizing law journals.  I have previously remarked on this phenomenon here.  Judge Richard Posner, James Lindgren, and Arthur Austin are some others in the legal academy who have claimed that students lack the competence to discern quality legal scholarship and review the accuracy of submitted papers.  (See footnote 1 of Natalie Cotton's comment on this issue for citations and summaries of this criticism).

As somebody interested in legal academia, I think that I will be best served by three years in law school.  My third year gives me the opportunity to attend more lecture courses so that I have a knowledge base in more areas of the law.  It also gives me the opportunity to write more.  I think that my reason for favoring the third year is fairly particular, however.  For students who were not summer associates in the summer after their second year, the third year of law school is typically devoted to finding jobs and taking easy classes or clinical courses.  For students who were summer associates, the third year of law school is typically devoted to taking easy classes or clinical courses.  As far as required classes are concerned, many law schools only go so far as to meet the ABA's requirements that students take an advanced writing course and a class in professional responsibility.  UCLA School of Law is an example -- it does not even require students to take a course in evidence law.

Do I think that a third year of law school helps students learn the basics of social science and statistics?  No, because most law schools do not encourage the study of these subjects in their curricula and many students do not take advantages of the opportunities when they do exist.  Do I think that a third year of law school will allow students to take courses where they systematically learn the doctrine in new areas of the law?  Yes.  Do I think that students use the third year of law school to take these courses?  Only sometimes.  Many students grow weary of lectures and turn to clinical courses for practical experience.  Moreover, with large law firms typically extending offers before the beginning of the third year of law school, there is no reason for these students to exert a great deal of effort in the third year.  Some students with offers do.  I am friends with several of them.  But I think that Ackerman is a little too optimistic in expecting students to use the third year of law school to become knowledgeable in statistics and social science.