Choosing History

Will Baude has written a column in the Washington Post, entitled Of Course the Supreme Court Needs to Use History. The Question is How.

Baude discusses the Supreme Court's use of history in its most recent term. He argues that using history is unavoidable:

History is inextricably connected to law. Our Constitution and statutes were enacted in the past, and amended in the past, and so understanding their content is an inherently historical endeavor. History, practiced properly, also can supply objectivity, giving the justices a basis for deciding beyond their personal views and the controversies of the day.

This use of history, as Baude notes, led to some recent dramatic decisions. In Dobbs v. Jackson Women's Health Organization, the Court ruled that there was no constitutional right to abortion, overturning Roe v. Wade, and causing abortion becoming illegal in numerous states due to trigger laws. In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court overturned a New York statutory scheme that had been in place for more than a century that required people to prove good cause in order to obtain a license to carry concealed firearms.

In Bruen, the Court first held (after about a page of analysis with no historical discussion) that the Second Amendment protected a right to carry firearms in public--extending the scope of the Second Amendment's protection beyond the scope of the home. The Court then spent most of its opinion applying a "historical tradition" approach to the constitutional interpretation. In Bruen, this meant that the government could restrict the Second Amendment right to carry firearms only if it could show a historical tradition of analogous restrictions on the right to carry firearms in public. The Court considered a host of laws, cases, and commentary, ranging from English law and common law, to colonial-era restrictions, to laws at the founding, during reconstruction, and beyond. Laws that happened to support broad restrictions were outliers, the Court argued. Old English authorities, like the Statute of Northampton, were outdated. Many of the founding-era and reconstruction-era restrictions were too narrow to be analogous--they restricted carrying firearms for certain purposes only, like causing terror and disruption. By choosing what historical laws were analogous, the Court was able to shape the historic record to fit its desired outcome: that there was no tradition of restricting the carrying of firearms. New York's law therefore had to go.

The next day, in Dobbs, the Court engaged in similar analysis to determine whether there was a historical tradition of permitting abortion. No such tradition existed, the Court claimed, citing "English cases dating all the way back to the 13th century" (despite its earlier discrediting of the Statute of Northampton as too old) and citing a host of historic restrictions banning pre-quickening abortion (that is, abortion before movement of the fetus could be detected--often at a point between the 16th and 18th week of pregnancy). These pre-quickening restrictions--restrictions that prohibited abortion in certain circumstances--are similar to many of the historic restrictions on carrying firearms that the Court rejected in Bruen--gun restrictions only banned carrying firearms in certain circumstances. In Dobbs, however, the Court cited these cases to support its conclusion that there was no historic recognition of any right to an abortion. The Court argued that just because pre-quickening abortion "was not itself considered homicide, it does not follow that abortion was permissible at common law--much less that abortion was a legal right." (Dobbs, p. 2250). Using this logic (logic that was notably absent in Bruen) The Dobbs Court cited partial abortion restrictions as evidence of a lack of a historical tradition of recognizing abortion rights. 

This closer look at these opinions reveals that the Court is not so much "doing" or "using" history as Baude suggests, but "choosing" history. Looking up historical evidence and parsing out historic laws and their development is a small, and seemingly insignificant part of the Court's analysis. The real work happens when the Court decides whether evidence is analogous to a present claimed right or restriction. 

The Court provides virtually no guidance or rules for this process. The Court doesn't say how many historical laws and regulations are necessary to establish a tradition, how old examples can get before they are too old, or where to draw the line between founding- or reconstruction-era laws that clarify or liquify meaning versus those that are unacceptably modern. This failure to provide guidance isn't an accident. It gives the Court the flexibility to treat the evidence in a manner that supports its desired conclusion. For example, in Dobbs, the Court cited commentaries from as far back as the 13th century as evidence of historic abortion restrictions. But the day before, in Bruen, it dismissed the Statute of Northampton (enacted in 1328 and in place for hundreds of years thereafter) as inapplicable, in part because they were unacceptably ancient. 

Another example: in Bruen, the Court dismissed colonial-era examples of restrictions on carrying firearms, stating that the respondents had only identified three such regulations and that "we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation." (Bruen at 2143). Earlier in its opinion, though, the Court asserted that restricting firearms in "sensitive places" was consistent with historical tradition--despite citing sources that were only able to identify two examples of colonial and founding-era restrictions on carrying firearms in sensitive places. (Dobbs at 2133, citing an article by Kopel & Greenlee and an amicus brief that only identify Maryland laws forbidding carrying guns in the houses of the legislature and a Delaware constitutional provision prohibiting guns in polling places). When it comes to restricting firearms, three examples are not enough to establish a historical tradition. But when it comes to reaffirming the sensitive places analysis that Justice Thomas had previously signed onto when he joined the Court's opinion in District of Columbia v. Heller, two examples were sufficient.

Baude argues that if critics of the Court want to make a difference, they're going to "have to make the best use of history, not try to escape it." They can't be like the dissenting Justices who "engaged superficially on historical grounds." This strategy is misguided. Confronting the Court with historical evidence likely make a difference in politically salient cases--as Bruen and Dobbs demonstrate. Critics may do history, they may use history. They may set forth a slew of examples in support of their claims. But this won't make any difference to a Court that chooses history to support desired results.

Choosing history as a basis for constitutional interpretation also skews the playing field against progress and protection of disadvantaged groups. The dissenting Justices make this point in Dobbs: 

We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women's liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase “We the People.” In 1868, the first wave of American feminists were explicitly told—of course by men—that it was not their time to seek constitutional protections. (Women would not get even the vote for another half-century.) To be sure, most women in 1868 also had a foreshortened view of their rights: If most men could not then imagine giving women control over their bodies, most women could not imagine having that kind of autonomy. But that takes away nothing from the core point. Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women's rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship. (Dobbs at 2324-25, Breyer J. dissenting).

What does Baude have to say to the fact that history itself is skewed due to the historic mistreatment and disenfranchisement of women and African-Americans?

The use of constitutional history has been challenged as inherently regressive. Why should today’s public policy decisions owe anything to past eras when women or people of color were excluded from power? This argument misses the point. In cases like Dobbs, the court seeks to free government from constitutional constraint, arguing that today’s governing majorities are entitled to make their own choices about abortion policy, no matter what dead White men in wigs may have thought. In cases like Bruen, the court relies on historical arguments that the right to keep and bear arms was especially vital to newly freed African Americans in the wake of the Civil War. And in other cases, the court has used history to vindicate the rights of criminal defendants and other unpopular groups.

Baude's point about Dobbs is unresponsive. As the Dissent points out, the absence of women's voices and participation in the political process is a glaring example of how history is skewed in a particular direction--here against the interests of women. For hundreds of years, women weren't guaranteed the right to vote. They were restricted from many professions, including the law and and the teaching of law. Is it really all that surprising that the notion that the right to abortion had anything to do with the right to privacy was a relatively recent part of legal discussions over abortion law? What's more, Dobbs wasn't about the meaning of the Constitution's text. The Court's conclusion regarding the scope of Due Process was based entirely on historical laws and restrictions, filtered through the selective reliance on certain examples and characterizing other examples in a manner that rendered them irrelevant or transformed them into further support. 

Additionally, Baude's mention of historical arguments about the relevance of the right to bear arms for newly freed African Americans in Bruen rings hollow in light of the fact that substantial majorities of modern communities of color support stricter gun laws (a point that Adam Winkler raises here). Baude's argument demonstrates the point he's trying to refute. In citing the reconstruction-era need for African Americans to be armed, the Court applies the oppression that African Americans faced during reconstruction to modern circumstances. This historic violence, which was perpetuated by white communities and government officials, ends up shaping and defining the modern right to keep and bear arms for all communities, despite the opposition of modern communities of color.

Perhaps there will be occasional exceptions where historical tradition aligns with the rights of criminal defendants an unpopular groups. But historical discrimination and oppression of women, racial minorities, Native Americans, and other disadvantaged communities suggests that we are off to a rough start if we choose to look to the past to guide present decisions. Cloaking the analysis in with phrases like "original public meaning" or "historical tradition," and characterizing the analysis as "ultimately deciding . . . law, not history for its own sake" as Baude urges may obscure this reality and make the process seem more neutral. But "doing" or "using" history leaves those seeking meaningful reforms and protections for disadvantaged groups and communities at a disadvantage from the outset. 

A clarification: Parties and those arguing before the Court should, of course, do what they can to make historical arguments. Doing so will ensure that no stone is left unturned and will shine a brighter spotlight on the Court's motivated reasoning.

Criticizing the Court's methodology is preferable to attempting to meet the Court on a skewed playing field. Perhaps the Court won't listen. But making this point abundantly clear to voters and lawmakers may prompt reforms or--at the very least--urge the election of Presidents and Senators who will appoint and approve Justices who engage in alternate methodology. Critics are better off making these arguments than legitimizing flawed, skewed, malleable historical and originalist methodologies by participating in those methods themselves.

UPDATE

Those who want to read even more about this should check out my draft article on the Court's historical tradition approach in Bruen, which I just posted to SSRN. Comments are welcome!

Originalism and Selective Historic Reference Points

A little over a week ago, Michael Dorf wrote an article in Verdict regarding oral arguments in New York State Rifle & Pistol Association Inc. v. Bruen. This is the Supreme Court's most significant Second Amendment case since McDonald v. City of Chicago, in which the Court incorporated the Second Amendment, holding that it applies against state restrictions on the right to keep and bear arms. The Supreme Court's prior opinion in District of Columbia v. Heller, two years before, had only held that the Second Amendment applied to federal restrictions. 

New York State Rifle & Pistol Association, like McDonald, involves a non-federal restriction on firearms. Most rights included in the Bill of Rights have been incorporated to apply against state and local governments--with the Supreme Court basing this incorporation in the Fourteenth Amendment's Due Process Clause. Justice Thomas has previously argued for an alternate approach to incorporation, arguing that the Privileges or Immunities Clause of the Fourteenth Amendment is the basis to apply the Second Amendment (and other rights enshrined in the Bill of Rights) against the states.

Dorf focuses on a question that Justice Thomas asked during oral argument:

Attorney Paul Clement argued the case for the plaintiffs. He contended that “history and tradition” supported his position. Justice Thomas, who, more than any of his colleagues, espouses originalism, understood Clement’s invocation of history to imply that the Court should look at what the constitutional text meant to the People who ratified it. But that then raised a question. Justice Thomas asked: “should we look at the founding, or should we look at the time of the adoption of the Fourteenth Amendment, which then, of course, applies it to the states?”

Clement, a former Solicitor General of the United States, is an excellent lawyer, so he gave the answer that best served his clients: it doesn’t matter. Whether you look at the original public meaning in 1791, when the Second Amendment was ratified, or at the original public meaning in 1868, you will find the same answer: a right of generally law-abiding citizens to carry firearms in public.

Is that right? As I discussed in an article published in the Northwestern University Law Review earlier this year, there is reason to believe (and sources cited in footnote 37 of my article conclude) that the People who ratified the Second Amendment understood its language to prevent the federal government from disarming state militias but not to have many implications for individual firearms possession, while the People who ratified the Fourteenth Amendment in 1868 understood at least some kind of individual right to keep and bear arms to be among the privileges and immunities that the provision secured against state interference. (emphasis added).

Dorf notes that the Court, both historically and now, has refused to find that constitutional amendments incorporated through the Fourteenth Amendment offer differing limits on the power of state governments compared to the federal government:

Most of the cases incorporating provisions of the Bill of Rights against the states arose during the 1960s. During that era, the Justices debated whether the Fourteenth Amendment incorporates Bill of Rights provisions against the states in exactly the way they apply to the federal government—a position sometimes called “jot-for-jot” incorporation—or whether in some instances the incorporated right might have different implications for the states.

We have already encountered one reason why a right might be different as applied to the federal government and the states: perhaps by the time the People ratified the Fourteenth Amendment in 1868, their understanding of the right had changed from the views that prevailed when the original Bill of Rights was ratified in 1791. Federalism provides another explanation: within broad bounds, each of the fifty states might be permitted some leeway in light of distinctive traditions and variations in their legal systems.

Despite the appeal of history and federalism, the Court eventually settled on jot-for-jot incorporation. Indeed, just last year, in Ramos v. Louisiana, Justice Neil Gorsuch, writing for the majority, decisively “rejected the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights” (citations and internal quotation marks omitted). In Ramos, the Court held that the Fourteenth Amendment’s incorporation of the Sixth Amendment’s right to jury trial in criminal cases precludes conviction based on a non-unanimous jury decision in state court, just as in federal court.

Dorf notes that Thomas, as well as other justices who've authored or signed opinions regarding the scope of incorporated amendments (including Justice Gorsuch in Ramos) claim to be originalists. I've written about originalism before, both here and in longer work. Most modern versions of originalism hold that the meaning of the Constitution and its amendments are fixed at the time of ratification, and that the original public meaning of those provisions at the time of enactment is the same meaning that should be applied today. That notion of fixed meaning (sometimes described as the "fixation thesis") is accepted by most modern academic originalists.

But if meaning is fixed at the time of ratification, then most of the amendments in the Bill of Rights likely apply differently against state and local law than they do against federal laws. That's because these amendments don't apply directly to state laws. Instead, they apply to states via the Fourteenth Amendment, which was ratified 1868--many years after the amendments were originally enacted at the end of the 1700s. During those years, the public's understanding of the often broad, abstract, and value-charged language of these amendments likely changed to some degree. And yet, self-proclaimed originalists on the Court pay little mind to this--indeed some have explicitly rejected it. Take McDonald, the case that incorporated the Second Amendment against the states. There, Justice Scalia--recognized as the highest profile originalist to sit on the court--joined in the portion of Justice Alito's opinion that explicitly rejected the notion that the Fourteenth Amendment may provide a different level of protection to the right to bear arms:

[Justice Stevens] would hold that "[t]he rights protected against state infringement by the Fourteenth Amendment's Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights." Post, at 3093.

As we have explained, the Court, for the past half century, has moved away from the two-track approach. If we were now to accept Justice STEVENS' theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, over vigorous dissents.

Justice Thomas, it should be noted, did not join in this portion of the opinion.

Alito's view is hardly without historic support. The Court has long refused to recognize differing levels of protection by the Fourteenth Amendment, warning against a potential dilution of protection against state law enforcement compared with federal law enforcement and raising the specter of incongruous enforcement of constitutional rights against different government actors. Take Justice Brennan's opinion for the Court in Malloy v. Hogan:

The Court thus has rejected the notion that the Fourteenth Amendment applies to the States only a "watered-down, subjective version of the individual guarantees of the Bill of Rights," Ohio ex rel. Eaton v. Price, 364 U. S. 263, 275 (dissenting opinion). If Cohen v. Hurley, 366 U. S. 117, and Adamson v. California, supra, suggest such an application of the privilege against self-incrimination, that suggestion cannot survive recognition of the degree to which the Twining view of the privilege has been eroded. What is accorded is a privilege of refusing to incriminate one's self, and the feared prosecution may be by either federal or state authorities. Murphy v. Waterfront Comm'n, post, p. 52. It would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in a state or federal court. Therefore, the same standards must determine whether an accused's silence in either a federal or state proceeding is justified. (emphasis added).

Incongruous as such a legal regime would be, it would at least be an originalist one. Refusing to apply two different standards rejects the fixation thesis in favor of the broader goal of a consistent set of rules governing the scope of constitutional amendments. This goal may be sensible, but it isn't consistent with originalism. And this ignorance of basic originalist principles may not always be in the service of such noble goals, as Dorf argues:

To be sure, in Ramos, as in McDonald, Justice Thomas concurred separately to insist that the Privileges or Immunities Clause, rather than the Due Process Clause, does the work of incorporation. But for him as well as his colleagues, originalism—which allows for changed meanings between 1791 and 1868—stood as no obstacle to full incorporation, which they favored on what pretty clearly appeared to be policy grounds.

In that respect, the irrelevance of Justice Thomas’s question—1791 or 1868?—jibes with everything else we know about originalism. In the most hotly contested cases that come before the Supreme Court, arguments rooted in original meaning typically serve a rhetorical function. Justices invoke them to justify decisions taken on other, ideological, grounds.

What are the implications of all of this? 

First, it suggests that as much as originalist scholars may argue in favor of originalism, these arguments seem to have little impact on the Court's actual practice, which consistently ignores (and is based in a history of ignoring) the notion that constitutional provisions' meanings are fixed at the time of enactment. Originalists may respond that failures to appropriately apply originalism should not count against the theory itself. Indeed, some argue that the recognition of such failures by the professoriate turns out to be a point in favor of originalism. Leaving a thorough response to that peculiar defense for another day, I will note for now that if the Court continues to consistently misapply originalism (and reach decisions based on the foundation of jot-for-jot case law), there ought to come a point where originalists should ask themselves whether everything they are working for is really worth it. 

Second, the longstanding failure of the Court to recognize that the meaning of constitutional provisions are fixed at the time of reenactment in the Fourteenth Amendment context threatens a recent trend in originalist scholarship arguing for a positivist take on the theory. This "positivist turn" in originalist theory (very broadly and briefly summarized), argues that originalism is our law, and that it should be followed because judges promise to follow the law. If the Court's history of failing to apply the original public meaning of the Fourteenth Amendment forms the basis for a great deal of constitutional law, the thesis that originalism is, in fact, our law is significantly undermined.

Third, the issue of whether to interpret early Amendments based on their meaning at the time of the founding or at the time of the Fourteenth Amendment's ratification represents a subsection of a debate over when the Constitution's meaning should be fixed. For the most part, this debate is sadly limited--originalists argue for fixation at the time of ratification, a few people (and I) argue that provisions should be read based on present public meaning, and the Court apparently favors fixation at the time of the founding, 1868 be damned. But there are more options. Why should we consider the meaning of the Constitution as fixed at any point before the Fifteenth Amendment barred the United States and the states from denying the right to vote based on race in 1870? Why shouldn't the meaning of the Constitution be fixed in 1920 when the 19th Amendment's ratification guaranteed women the right to vote? Some may argue that the Constitution has mechanisms for amendments built in, and that this "potential sovereignty" somehow ameliorates the failure of earlier iterations of the Constitution to accommodate the democratic input of those it governs and protects. But this doesn't account for the fact that determinations of original public meaning tend to focus on the voices of those who played a role in the drafting, adoption, and ratification of constitutional provisions, and that the voices of women and African Americans were absent from these contexts for centuries. Those historically excluded from voting may not want to completely do away with the Constitution and amendments as they're worded, but they ought to have some sort of a say in the meaning of these provisions if we're going to claim with a straight face that the Constitution represents the popular will of a supermajority of Americans.

While I have dozens of depositions and hundreds of other projects and emergencies to worry about over the next few months, I'm sure I'll find the time to write more on these issues. In the meantime, we'll see if any of the Justices make an effort to differentiate between or justify particular historic reference points for their constitutional interpretations when the opinion in New York State Rifle & Pistol Association is eventually issued.

Non-Disparagement Agreements With the Government and the First Amendment

Eugene Volokh wrote yesterday about a settlement agreement between a former employee of a Veterans Affairs Hospital in Washington. The settlement agreement, entered into by the parties in January 2013, contained a provision barring the former employee from:

. . . making any complaints or negative comments to any member of Congress or their staff, or any newspapers or media or their staff, or any other public forums, about the facts of this Settlement Agreement or the facts or conditions that led up to this Settlement Agreement.

Volokh notes that the Equal Employment Opportunity Commission recently found that the provision above violated the former employee's First Amendment rights.  I have written previously about non-disparagement agreements in the context of contracts between private parties. As I argued in that post, non-disparagement agreements hidden in contracts of adhesion between large companies and private consumers may be unconscionable and therefore unenforceable.

Non-disparagement agreements that are parts of settlement agreements between private parties are a different story. Typically, the parties are both represented by counsel and reach the settlement agreement after negotiation over the agreement's terms. If those terms contain a provision prohibiting one of the parties from disparaging the other, or speaking about the facts giving rise to the litigation, the term will likely be enforceable as a negotiated provision of an agreement. From prior research, I am aware of the Maryland Court of Special Appeals opinion in Smelkinson Sysco v. Harrell holding this to be the case, and Volokh cites Cohen v. Cowles Media in support of this claim.

But what of non-disparagement agreements between private parties and government entities? These agreements appear to raise First Amendment concerns because government action is involved. Volokh's post highlights one such example. Julia Craven points out similar provisions in settlement agreements reached in excessive force lawsuits against police officers. Does prohibiting the private party from speaking about the facts giving rise to the litigation violate that party's first amendment rights?

Volokh thinks it might:

Now whether such agreements, entered into by the government, are constitutional is a complicated question. Private parties often do enter into various confidentiality and nondisparagement agreements, and they’re generally enforceable. (See, e.g., Cohen v. Cowles Media Co. (1991).) The government is subject to First Amendment constraints, even when it’s acting as contractor; and I’m inclined to think that such a nondisparagement agreement, aimed solely at preventing embarrassment to the employer (rather than, say, preserving client privacy or national security secrets), is unconstitutional. Still, it’s not completely clear what the rules are here.

I disagree with Volokh's inclination (although I agree that the rules are unclear). If the parties have reached a negotiated settlement agreement in which a private party agrees to curtail his or her speech in exchange for a monetary payment or other action by the government, this strikes me as a negotiated waiver of First Amendment rights. Waivers of constitutional rights may be permitted if they are knowing and voluntary -- consider, for example, the vast majority of criminal cases resolved through plea bargains where defendants give up their right to a jury and right to confront witnesses (see also: DH Overmyer Co. v. Frick Co. for a more general discussion of waivers).

Knowing and voluntary waivers of First Amendment rights may also be constitutional. In Leonard v. Clark, the Ninth Circuit upheld the Portland Fire Fighters Association's agreement with the City of Portland providing in relevant part that legislation supported by the Union that resulted in increased payroll costs to the City would be charged against the applicable salary agreement with the Union. The Union contended that this violated its First Amendment right to petition the government, and the Ninth Circuit disagreed, holding that the Union had made a knowing, voluntary, and intelligent waiver of its First Amendment rights.

Another example is Estate of Barber v. Guilford County in which the Court of Appeals of North Carolina upheld a settlement agreement between a private party and the Guilford County Sheriff's Department in which the private party agreed not to use the term "murder" with respect to a certain Deputy. The Court of Appeals found that the waiver of First Amendment rights was knowing and voluntary, and therefore enforceable.

While I think that there is a decent argument that parties can be permitted to knowingly and voluntarily waive their First Amendment rights in a negotiated settlement with the government, the case law on this topic is underdeveloped. As discussion on these provisions in the public and private context continues, I look forward to seeing how the courts treat these agreements.

On the other hand, should awareness of non-disparagement agreements continue to grow, I would not be surprised if government entities began shying away from them. As Volokh points out, the presence of such agreements raises serious political accountability questions. If more people learn that government entities are requiring parties to sign non-disparagement agreements, speculation over what the government is trying to hide may end up being more damaging than the facts themselves.

Court Convicts Dead Man of Stealing Electricity

Kevin Underhill at Lowering the Bar comments on an unusual case where a Greek court convicted a defendant in absentia for stealing electricity. Despite the defense attorney's request that the trial be continued pending the provision of a death certificate, the court refused.

The court imposed a suspended sentence of six months in jail. As Underhill notes, that jail term wouldn't be imposed unless the defendant violated the law in some other way, so the defendant is "effectively off the hook."

The case raises several interesting questions. For instance, what if the charge were more severe, and this case took place in China? Would a Chinese court impose a suspended death sentence on a deceased defendant? And if a defendant were to fail to report to prison (due to his or her being dead) would the court then impose the suspended death sentence? If so, how?

Moreover, this case touches on a particular interest of mine regarding the law governing the dead and undead. As I have argued in both prior posts and published scholarship, criminal law (unlike tax law) is a particularly effective means of combating the undead in the eventual zombie apocalypse. 

Even if defendants are dead, courts in Greece and Russia will still move forward with prosecution. If When the zombie apocalypse occurs, one can only hope that more courts will follow this trend so that the undead may be effectively tried and prosecuted for the numerous crimes they will inevitably commit.

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.

Is it Constitutional to Prosecute Those Who Mail Cow Manure?

My attempt at answering this age-old legal question is prompted by this story about a pair of feuding Iowa couples. Here is the report:

A southeast Iowa couple who were sent cow manure in the mail have sued the woman who acknowledges that she paid to have the poop sent.

The Hawk Eye reports that Mary Eipert and Steven Rowland want a judge to order Kimberly Capdevila and her husband, Carlos, to stop their dog from barking all day and night. The lawsuit filed Monday seeks compensatory and monetary damages for the barking and for what the lawsuit says is harassment by the Capdevilas.

The two couples are neighbors who have been squabbling over the barking dog. Fifty-one-year-old Kimberly Capdevila has said she had the manure sent as a practical joke. She has pleaded not guilty to a misdemeanor charge of harassment. She’s due back in court on April 7 for pretrial conference.

In this post I will briefly discuss the aspects of the Rowlands' civil claim, but then move on to discuss the criminal side of this story. I will look into the crime that Kimberly Capdevila has most likely been charged with, whether the prosecution has a strong case, and whether prosecuting Capdevila under this law is constitutional.

Judicial Elections and Campaign Finance Regulations

Today's New York Times contains this article by Adam Liptak on campaign finance rules for judicial elections. From the article:

Soon after Justice O’Connor retired, in 2006, the Supreme Court embarked on a run of campaign finance decisions amplifying the role of money in politics. Those rulings are also helping transform state judiciaries. 

“At a time when concerns about the conduct of judicial elections have reached a fever pitch, the court today unleashes the floodgates of corporate and union general treasury spending in these races,” Justice John Paul Stevens wrote in his dissent in the 2010 Citizens United decision, which concerned spending in a presidential primary. 

The last three election cycles included $152 million in spending in judicial races, according to Justice at Stake, a research and advocacy group that says it seeks to protect judicial independence. “Judicial campaign cash is burning a hole in the Constitution,” said Bert Brandenburg, the group’s executive director. “You cannot pour millions of dollars into our courtrooms without having an effect.”

Liptak notes that the federal courts of appeals are split over whether states can prohibit campaign solicitations by judges. Liptak highlights one case, Williams-Yulee v. The Florida Bar, that may end up making it to the Supreme Court. The issue in that case is "Whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment."

Liptak points out that recent Supreme Court cases have taken a permissive approach to campaign finance regulations in cases like Citizens United v. FEC. He notes, however, that in Caperton v. A.T. Massey Coal Co., the Court seemed to take a different approach to cases involving judicial elections.

In Caperton, the United States Supreme Court overturned a West Virginia Supreme Court of Appeals decision on the ground that one of the West Virginia Supreme Court of Appeals justices, Brent Benjamin, had accepted substantial campaign donations from Don Blankenship, the chair of A.T. Massey Coal Co., and the defendant in the case. Despite having previously received these donations from one of the parties in a case before him, Justice Benjamin refused to recuse himself and ended up being the vote that caused the West Virginia Supreme Court of Appeals to rule in favor of A.T. Massey. The United States Supreme Court held that Justice Benjamin's refusal to recuse himself violated the plaintiff's due process rights.

Liptak's article concludes that the Court would likely strike down restrictions on judicial campaign funding despite its decision in Caperton. I am inclined to agree. While the Court's finding in Caperton recognized that some instances of campaign finance may affect a judge's impartiality and violate due process, Caperton involved a clear case where one judge had previously received a notably high amount of donations from one of the parties in a case before the judge. The Supreme Court would likely distinguish the clear abuse that occurred in the Caperton case from broader questions of campaign finance regulations which do not inherently involve such blatant quid pro quo.

Moreover, the Supreme Court can appeal to its ruling in Caperton to argue that campaign finance restrictions will not have a meaningful impact on preventing judicial corruption. Having ruled that clear instances of quid pro quo can already be remedied through due process challenges, the Court may argue that any additional regulation would be an excessive restriction on the First Amendment right to contribute to political campaigns.

If the Supreme Court does indeed intend to take this approach to judicial campaigns, it is likely that the Court will end up hearing the Williams-Yulee case in order to settle the circuit split on the issue. Moreover, the Ninth Circuit's recent decision to grant en banc review to its earlier decision striking down Arizona's restrictions on judicial campaign financing may increase the probability that the Court will take up Williams-Yulee.

Lawfare Podcast on the Law of War . . . Against Zombies

I highly recommend the most recent Lawfare Podcast which is entitled, "Bone-Crushing Zombie Action."




Shane Harris moderates the podcast in which Benjamin Wittes, Robert Chesney, and Jennifer Daskal discuss issues that would arise in the event of a military conflict between the United States and zombies.

The panelists discuss numerous issues, including whether the President would have the authority to order military force against zombies, whether zombies can truly considered to be engaging in "armed" conflict against the united states, and whether military action would potentially violate the zombies' due process rights or international laws. Important considerations throughout the discussion include whether the zombies are human or not and whether non-lethal actions against zombies are feasible.

My favorite line in the podcast is from Benjamin Wittes. A portion of the podcast addresses the issue of how much government surveillance should be permitted in light of the zombie threat. Wittes points out that privacy is an important consideration, but that "I prefer to be not eaten on camera than to be lunch in private." There was also some pretty good discussion about the case, In re Neagle.

If you are looking for both laughs and some good insight into an alternate perspective on laws of war, I highly recommend that you listen to the whole thing.

"Reverse" 413-414 Evidence and the Limits of Accusing Alternate Suspects

At EvidenceProf Blog, Colin Miller discusses the case, United States v. Thunder, (8th Cir. 2014 WL 944752), and some interesting questions the case raises. In Thunder, the defendant was convicted of sexual assault. At trial, the defendant had attempted to introduce evidence that another person, Speker, had committed the assault and sought to introduce evidence of Speker's prior conviction for sexual abuse.

The trial court did not permit evidence of the alternate suspect's prior conviction, noting that the evidence would be unduly prejudicial under Federal Rule of Evidence 403 and would likely cause confusion to the jury. The Eighth Circuit affirmed this ruling, noting that there was no evidence that the alternate suspect had been near the victim when she was attacked.

Miller asks the broader question about whether the Federal Rules of Evidence permit evidence of a third party's prior sexual assault or abuse convictions:

My second question relates to Federal Rule of Evidence 414(a) and Federal Rule of Evidence 413(a), which covers prior acts of sexual assault. These rules generally allow the prosecutor to present evidence of any prior sex crimes committed by a criminal defendant to prove any relevant purpose, subject only to a very lenient Rule 403 analysis. 

The Speker evidence didn't satisfy Rule 403, but what if it did? For instance, what if the defendant did have evidence that Speker was alone with the victim? Techinically, Federal Rule of Evidence 414(a) only allows for the admission of evidence against a defendant. And while courts do allow defendants to use Federal Rule of Evidence 404(b) to prove the motive, intent, etc. of an alternate suspect (reverse 404(b) evidence), a defendant generally cannot present evidence of the general criminal propensities of alternate suspects. So, for instance, a defendant would be precluded from presenting evidence of an alternate suspect's prior rape conviction to prove "once a rapist, always a rapist." 

But should a suspect be able to introduce "reverse" 413/414 evidence to prove just such a thing? Is that what fairness requires?

I agree with Miller that the text of the rules does not support the introduction of "reverse" 413-414 evidence. Not only do rules 413 and 414 refer only to admission of evidence against the defendant, but Rule 404's broader prohibition on the use of propensity evidence refers to generic "persons" and is not limited to preventing evidence of the defendant's prior crimes or bad acts.

But whether allowing evidence of prior crimes by alternate suspects is a good policy is a far more complicated question.

It is Not Illegal to be Drunk and Annoying in Indiana

...or at least the law that criminalizes this activity is unconstitutionally vague. From the Wall Street Journal's Law Blog:

Indiana’s public-intoxication law makes a criminal of someone who, while drunk in a public place, “harasses, annoys, or alarms another person.” 

Or at least it did. 

. . . 

On Thursday, the Indiana Court of Appeals sided with [defendant, Rodregus] Morgan and struck down the “annoying” language in the law, knocking the wind out of his public-intoxication conviction. (It upheld his conviction for disorderly conduct, however.) 

The court concluded that the law was in fact too vague because it neither required intent to annoy another person, nor provided an objective standard for judging what makes something annoying.

The full text of the opinion, Morgan v. State, is available here. In concluding that the law was too vague, the court wrote:

Namely, the statute neither requires that a defendant have specifically intended to annoy another, nor does it employ an objective standard to assess whether a defendant’s conduct would be annoying to a reasonable person. Furthermore, the statute does not mandate that the defendant have been first warned that his behavior was considered annoying conduct. Instead, this section of the statute enables arbitrary and discriminatory enforcement because the illegality of any conduct—no matter how trivial or how substantial—is based solely on the subjective feelings of a particular person at any given time.

The court's reasoning seems to imply that the law may be salvaged if an objective standard is added to the existing "annoying" language. This means that if a statute bans conduct that would annoy the reasonable person, the state would have a stronger argument that the statute is not unconstitutionally vague.

All of this raises the question: what annoys the reasonable person? This is an important question that the court leaves unanswered, and should probably be the subject of a student note.

A Potential Drone Strike on an American Citizen and Related Articles by Gonzales, Vladek, and Opderbek

The New York Times reports:

The Obama administration is debating whether to authorize a lethal strike against an American citizen living in Pakistan who some believe is actively plotting terrorist attacks, according to current and former government officials.

It is the first time American officials have actively discussed killing an American citizen overseas since President Obama imposed new restrictionson drone operations last May. 

. . . 

The first time the Obama administration carried out a targeted killing operation against an American citizen was in September 2011, when a C.I.A. drone killed the radical preacher Anwar al-Awlaki in Yemen; officials said little publicly about the operation. The White House acknowledged last year that four American citizens had been killed in drone strikes during Mr. Obama’s time in office. According to the White House, only Mr. Awlaki had been intentionally targeted.

As the Times notes, the Obama administration is moving drone operations to the Pentagon to make the process more transparent. But there is a limit to the amount of transparency that the government can practically provide, and the practice of targeting American citizens remains highly controversial.

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)