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Tuesday, March 31, 2015

Silk Road Investigators Charged With Money Laundering and Wire Fraud

From the New York Times:

On the so-called dark web, drug dealing and other illicit sales have thrived in recent years, the authorities have said, through hidden websites like Silk Road and hard-to-trace digital currencies like Bitcoins. 
On Monday, the government charged that in the shadows of an undercover investigation of Silk Road, a notorious black-market site, two federal agents sought to enrich themselves by exploiting the very secrecy that made the site so difficult for law enforcement officials to penetrate. 
The agents, Carl Mark Force IV, who worked for the Drug Enforcement Administration, and Shaun W. Bridges, who worked for the Secret Service, had resigned amid growing scrutiny, and on Monday they were charged with money laundering and wire fraud. Mr. Force was also charged with theft of government property and conflict of interest.
The complaint can be found here. It alleges that in the course of their investigation into the Silk Road site, the agents obtained hundreds of thousands of dollars in bitcoins which they then deposited into their personal accounts.

Monday, March 30, 2015

Kerr on The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria

A while ago, I wrote about Adam Liptak's criticism of law reviews, and argued that Liptak's criticism lacked novelty. I also did some research into a quote by Chief Justice Roberts on law reviews. That quote is:

Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.
At the time, I pointed out that no article of the sort existed. But that is no longer the case.

Orin Kerr at the Volokh Conspiracy has this post on one of his new papers. Its title: The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria.

Here is the abstract:

In 2011, Chief Justice Roberts commented that if you "pick up a copy of any law review that you see," "the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I'm sure was of great interest to the academic that wrote it, but isn't of much help to the bar.” No such article exists, of course -- until now. This short essay explains why, in all likelihood, Kant’s influence on evidentiary approaches in 18th-century Bulgaria was none.
While the subject matter may be arcane, the paper is still quite fun to read, and is only three pages long.

Friday, March 27, 2015

Ninth Circuit to Grant En Banc Review in Concealed Carry Case

So reports the Los Angeles Times:

A federal appeals court agreed Thursday to reconsider a decision that made it easier to receive a permit to carry a concealed weapon. 
State Atty. Gen. Kamala Harris had appealed the 2-1 decision in February 2014 by a panel of the 9th Circuit Court of Appeals that struck down a policy of the San Diego County Sheriff's Department. The department had required applicants to show "good cause" why they needed a concealed weapon permit.  
The 2-1 decision said the policy was overly restrictive.
The court's order is available here.

I blogged about this case -- Peruta v. County of San Diego -- back in February, 2014 when the Ninth Circuit struck down San Diego's policy requiring a good cause showing for concealed firearm permits.

As I mentioned when I discussed the case last year, this grant of en banc review may lead to a reversal of the decision, which could lessen the impact this case has had on a circuit split over the Second Amendment's protection for carrying concealed firearms. If that happens, the chances of Peruta making it before the United States Supreme Court could be reduced.

Nevertheless, it will be interesting to see how an en banc panel ends up treating this case. And this grant of review is at least a guarantee that there will be some notable Second Amendment news coming out of the federal appellate courts in the near future.

Wednesday, March 25, 2015

No Sanctions for Attorney Who Submitted Incomprehensible Certiorari Petition

From the Wall Street Journal Law Blog:

The Supreme Court on Monday declined to sanction a Washington, D.C., patent attorney who faced a rare high court sanction over a petition he submitted that was written in almost indecipherable jargon. 
As Law Blog reported earlier, the justices raised eyebrows in December when they demanded that Foley & Lardner LLP partner Howard N. Shipley show cause as to “why he should not be sanctioned for his conduct as a member of the Bar.” 
Supreme Court observers said they couldn’t recall the last time the nation’s highest court singled out a corporate attorney for possible punishment.
I blogged about this petition earlier, and noted that even though patent law can be complicated, the brief -- due to its awkward structure and use of symbols -- is virtually impossible to understand.

Shipley's attorneys described the brief in friendlier terms, characterizing it as "an unorthodox petition that clearly and faithfully reflects the views of the client, right down to the client’s favored locutions and acronyms employed in his other writings about the patent system."

Tuesday, March 24, 2015

Court Finds No Third Amendment Violation After Police Occupy Home

Over at the Volokh Conspiracy, Ilya Somin writes about a recent ruling by a federal district court that police officers did not violate the Third Amendment when they entered the plaintiffs' home and stayed there for several hours while staking out the plaintiff's neighbor. The court's opinion can be found here.

The Third Amendment prohibits soldiers from being quartered in homes during times of peace without the homeowner's consent. I blogged about this particular case back when it was filed in 2013. In that post, I noted that I did not think that the lawsuit would succeed because the police officers were not "quartered" in the home. They merely stayed in the home for several hours while conducting an investigation of a neighbor.

But the district court did not even get that far, as it ruled that the Third Amendment did not apply to the officers' actions because they were not "soldiers" under the Third Amendment. While the court strongly suggested that the officers also were not quartered in the home, the court explicitly avoided answering that question.

Somin criticizes the opinion, noting that the militarization of certain police forces tends to blur the line between the police and military.

Somin also thinks that the officers may have been quartered in the home:

The issue of how long the soldiers (or militarized police) have to stay in a private home before their occupation of it qualifies as “quartering” is also a tough question. Without actually resolving the issue, Judge Gordon suspects that a 9 to 24 hour period is too short. I am not convinced. It seems to me that spending one night in the house does qualify as quartering, albeit for only a brief period. Just as the First Amendment covers even brief restrictions on freedom of speech and the Fifth Amendment requires compensation for the taking of even small amounts of private property, so the Third Amendment forbids even brief involuntary quartering of troops in private homes.
I stand by my earlier reaction to the case, and I don't think that this case involves quartering, even if the officers spent a night in the house. Officers did not spend time in the plaintiffs' home for purposes of rest or housing -- they stayed in the house in order to use it as a platform to conduct surveillance on the plaintiffs' neighbor.

As I note in this post, definitions of "quartered" typically involve one's dwelling or lodging in an area, notions that seem fundamentally different from conducting one's function as a soldier or police officer from the platform of somebody's house. Accordingly, it is not a question of how long officers are in a house, but rather a question of what they are using that house for that determines whether the officers are quartered.

Because the officers were not using the house as a dwelling or for lodging, I don't think that it is accurate to conclude that they were quartered in the house -- and I think that Somin's parallel of this case to the minimal restrictions of other rights is therefore off-point. But in light of the minimal case law on this subject, I can't bolster my claims with very much authority, so there is not much to stop courts down the road from adopting Somin's position.

Friday, March 20, 2015

A New Round of Bar Exam Criticism

Law school graduates around the country took the bar exam at the end of February. In the exam's wake, commentators are questioning the necessity of the test. Last summer's bar exam prompted a notable wave of criticism in light of low passage rates and some blunt comments by the president of the National Conference of Bar Examiners. That criticism appears to have continued into the spring.

The New York Times reports:

For decades, law school graduates have endured a stressful rite of passage, spending the first 10 weeks after classes end taking cram courses in the arcane details of the law before sitting down for the grueling, days-long bar exam. Those who do not pass cannot practice law, at least in nearly all the states and the District of Columbia that consider the exam the professional standard. 
But that standard, so long unquestioned, is facing a new round of scrutiny — not just from the test takers but from law school deans and some state legal establishments. Some states, including Arizona, Iowa and New Hampshire, are exploring or have adopted other options, questioning the wisdom of relying on a single written test as the gateway to legal practice. 
The debate over the exam is not new, but it broke out in the open after the results of last summer’s exam were released in the fall, showing that the 51,005 test takers had the poorest results in nearly a decade.
The article explores several innovative approaches to bar exams, such as allowing students to take the bar exam in their final year of law school. Arizona has implemented this approach, which reduces the amount of time that students need to wait before exam results.

The article also notes that several states, including Iowa, have considered adopting Wisconsin's approach and doing away with the bar exam for students who graduate from in-state law schools. I have gone on record arguing that this proposal is misguided.

But I think that approaches like Arizona which could reduce the burden of the bar exam without eliminating it are worthy of exploration. And Derek Muller has this post noting that California's bar examiners are considering reducing the length of the bar exam from three days to two. Muller notes that this would make the exam less grueling, that those taking the exam would not need to spend as much on hotels, and that this change could cut down on the time it takes to grade exams.

I think that reducing California's bar exam to two days is a very good idea. The idea is not a new one, however, and I am worried that any decision or discussion on the issue may end up being delayed in the same way it was two years ago. My hope is that the continuing criticism of bar exams will prompt the Committee of Bar Examiners to give more serious consideration to the proposal.

My New Paper on Prior Sexual Misconduct Evidence in State Courts

I just posted my most recent article on SSRN. The title is Prior Sexual Misconduct Evidence in State Courts: Constitutional and Common Law Challenges. The article will be in the next issue of the American Criminal Law Review.

Here is the abstract:

Prosecuting sex crimes is a sensitive, challenging process, and many who commit these crimes end up going unpunished. While a defendant may have a history of prior sexual misconduct, the rules of evidence in most states and at the federal level generally prohibit the introduction of prior misconduct to show a defendant’s propensity to commit a present crime. In response, the federal government and numerous state legislatures have adopted rules of evidence that permit the introduction of prior sexual misconduct in cases where a defendant is charged with a sexual crime. 
While commentators have written in great detail about federal rules regarding sexual misconduct propensity evidence, comparatively little attention has been paid to analogous rules at the state level. And while much of the commentary on rules of evidence permitting the introduction of prior sexual misconduct focuses on whether these rules are good or bad policy, questions of whether the rules violate due process rights or separation-of-powers requirements often fall by the wayside. 
This article fills these gaps in the literature. In this article, I offer the first systematic review of challenges to state rules of evidence that permit the introduction of evidence of a defendant’s prior sexual misconduct. These challenges include claims that these rules violate due process, that they violate constitutionally mandated separation of powers, and that they contradict the common law. This article examines both the successful and unsuccessful challenges to state rules, evaluates the merits of the arguments, and emphasizes procedures and considerations that states must address if they seek to change their rules to permit evidence of prior sexual misconduct.
As is the case with all of my papers and posts, comments and criticism are welcome.

Wednesday, March 18, 2015

Ban on Sexual Orientation Conversion Therapy for Minors Approved By Iowa Senate

So reports the Des Moines Register:

Iowa mental health professionals would be banned from trying to change the sexual orientation of gay patients younger than 18 under a bill approved on a straight party line vote Tuesday by the Iowa Senate. 
Senate File 334 was passed 26-24. All Democrats voted in favor. All Republicans voted no. The bill now heads to the Republican-controlled House, where it will likely be declared dead amid strong opposition from Christian conservatives.

I had previously expressed hope that the bill would pass, noting that if more states pass similar bans, it could lead more courts to analyze the interesting First Amendment aspects of these laws. But if Republican lawmakers continue their voting patterns in the House, it looks like this bill isn't going to make it very much further.

Tuesday, March 17, 2015

The Implications of the "Blurred Lines" Verdict for Weird Al Yankovic

The major intellectual property story of the spring has been a lawsuit by Marvin Gaye's estate against Pharrell Williams and Robin Thicke. A jury recently held that Thicke and Williams' song, "Blurred Lines," infringed on the copyright for Gaye's song, "Got to Give It Up." I have not been following the litigation very closely, and I do not have much analysis of my own to add regarding the litigation itself, but you can find additional analysis and criticism of the case and verdict here, here, here, here, and here.

While I am not a big fan of Pharell Williams or Robin Thicke, I am far more interested in the work of Weird Al Yankovic. Weird Al wrote an excellent parody of Williams' and Thicke's song, entitled "Word Crimes." Here it is:

While Weird Al made sure to get permission from Thicke and Williams to use their song as a basis for his parody, would Thicke and Williams' recent loss spell trouble for Weird Al?

Sherwin Siy thinks that Weird Al could potentially be affected by the "Blurred Lines" litigation. While the Gaye estate did not sue Weird Al in time to recover damages for copyright infringement, the estate may still be able to sue Weird Al to recover a share of his profits from the song. As Siy notes:

While awards of damages for copyright infringement are joint and several, awards of the infringers’ profits are only several. This means basically that each infringer is responsible for their own profits, and not anyone else. You can see how this works: though the Gaye estate was damaged a certain amount by everyone (here, let’s say, Pharrell, Thicke, and Yankovic) acting in concert, each of those three different people made a different amount of profit, separate attributable in part to their use of the song. 
So while it’s too late for the Gaye estate to recover damages from Weird Al (or, to be more accurate, they already have, in a way), they could still try to go after him for his profits on “Word Crimes,” to the extent that those profits can be attributed to his taking from “Got to Give It Up.” And giving Al Yankovic a reason to worry is just one more reason to be upset with this verdict.
So even though Weird Al was not involved in the original infringement suit, he may still face difficulties if the Gaye estate seeks to capitalize on its recent victory. But if that victory ends up getting appealed, perhaps Weird Al will be free to continue marketing his parody without disruption.

Tuesday, March 10, 2015

Labeling a Container as "Not Weed" is Unlikely to Eliminate Suspicion

So learned a Nebraska man who was pulled over when officers suspected he was driving under the influence. The Lincoln Journal Star initially reported the story:

A 21-year-old Lincoln man was arrested on suspicion of driving under the influence of alcohol and cited for possession of less than an ounce of marijuana after deputies found a 16-ounce container labeled "Not Weed" under the front passenger's seat.
The New York Daily News reports on the story as well, and includes a quote from Lancaster County Sheriff Terry Wagner regarding the label on the container:

“We call that a clue,” Wagner said.

Indeed, if suspects want to avoid arousing suspicion, labeling their possessions as the opposite of what police officers may be looking for may not be the best approach.

If you want to see a picture of the suspicious container, the Daily Mail has that covered here.

Perhaps if the label were typed rather than handwritten, the driver may have had a better chance of dispelling the officer's suspicion.

(H/T: Lowering the Bar)

Monday, March 9, 2015

University of California, Irvine Law School Ranked 30th by US News

So reports this press release from the school:

The University of California, Irvine School of Law has been ranked by U.S. News & World Report No. 30 out of 198 fully accredited law schools in the country. This is the highest debut ranking of any new law school in the history of the U.S. News rankings. Additionally, UCI Law’s Clinical Program ranked No. 11, and UCI Law scored among the top 10 in student diversity, according to the U.S. News Diversity Index.
The press release also notes several statistics that may be under-emphasized in US News rankings, including Irvine's notable scholarly impact (ranked by one study as 7th among US law schools) and its clerkship placement -- ranking at third behind Yale and Stanford.

Other outlets have coverage on the most recent set of US News Rankings. For opinionated commentary, see Above the Law, and for commentators using this news as yet another excuse to say that law schools are in a "death spiral," see the Washington Post.

Wednesday, March 4, 2015

Florida Man Kills Neighbor, Brings Body to Lawyer's Office

From the incomparable Florida Man Twitter account, I learned of this strange story of a man who claims he killed his neighbor in self-defense, and who brought the body with him to his attorney's office. From the News Press article:

A Lee County man who drove a dead neighbor to his attorney's office will not be arrested, his attorney, Robert Harris, said late Wednesday night. 
John Marshall walked into Harris' Fort Myers law firm Wednesday claiming he had killed a man in self-defense in Bokeelia and brought the body with him in the bed of his pickup.
Robert Harris, the attorney for John Marshall (no, not the renowned Supreme Court Justice) had been counseling Marshall on the conflict between the neighbors. But he was certainly surprised at this turn of events:

Harris said he's never handled a case involving a client bringing a body with him. 
"They don't teach you about this in law school. That's for sure," he said. "I believe we've handled ourselves correctly, but I'm a little in shock myself. This is not something that happens every day."

While law schools may shy away from addressing this scenario, it certainly isn't off limits for law blogs. So what is a criminal attorney to do when a client brings a body (or other incriminating evidence) to the attorney's office?

Florida's Rules of Professional Responsibility state that while lawyers do indeed have a duty of confidentiality toward their clients, lawyers cannot obstruct, destroy, or conceal evidence sought by another party, including the government. Rule 4-3.4(a) states that a lawyer must not:

unlawfully obstruct another party's access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act;
The commentary accompanying the rule notes that parties entitled to the unobstructed evidence include the government. So if a client comes to an attorney with a dead body, the attorney certainly cannot hide or destroy the body, nor can the attorney counsel the client to do so.

Because news outlets are reporting on John Marshall bringing his neighbor's body to his lawyer, it appears that Harris complied with the applicable rules of professional responsibility. Students and professors of legal ethics should take this story to heart, and know that even the most outlandish of hypothetical scenarios occasionally make their way into the real world (or at least Florida).

Tuesday, March 3, 2015

Proposed California Ballot Initiative Would Punish Homosexuality With Death, Vigilantism, Banishment

Shifting gears from my last post on Iowa's bill to prohibit sexual orientation conversion therapy for minors, I recently learned about this outrageous ballot initiative that was recently proposed in California. The Huffington Post reports on the initiative here.

The lawyer filing the initiative seeks to add section 39 to the California Penal Code which would punish the willful touching of another person of the same gender with death "by bullets to the head or by any other convenient method."

The proposal goes on to suggest outlawing "sodomistic propaganda," defined as "anything aimed at creating an interest in or an acceptance of human sexual relations other than between a man and a woman." This proposed felony would be punishable by a possible $10 million fine, 10 years imprisonment, and possibly banishment from the state of California for "up to life."

The law then goes on to state that only a "quorum" of the Supreme Court of California can overturn the law. Of course, only justices who are not "sodomites" would be permitted to rule on the law's validity.

But wait, there's more.

After a year, people would be permitted to privately enforce the law and be free from civil or criminal immunity arising from these enforcement efforts. And the text of the law would be required to be posted in all classrooms.

Direct democracy can be an interesting tool to promote creative lawmaking. But this process risks proposals that call for for rampant death penalties, widespread oppression of speech, vigilantism, banishment, and the cluttering of classroom walls. Incredibly, this one initiative would do all of those things. It will be interesting to see if the initiative gets the 350,000 signatures required for it to end up on the ballot.