Introduction: Interest Convergence and the Limits of Law Enforcement: Developments, Prospects, and Distractions

In a New York Times Op Ed released yesterday, Professors Devon Carbado, Kimberlé Crenshaw, and Cheryl Harris reacted to Judge Scheindlin's opinion that the New York City Police Department's "Stop-and-Frisk" policy violated the Fourth and Fourteenth Amendments.  (That opinion is available in two parts: here and here).

Carbado, Crenshaw, and Harris focus on how this decision makes little difference to the status quo where the Supreme Court's approach to the Fourth Amendment permits police officers' use of race as a factor in stopping, frisking, and pulling over African-Americans and Latinos.  The government's law enforcement power remains characterized by the vast discretion afforded to officers.

This article is a very good primer on police discretion under existing Fourth Amendment law.  It effectively outlines the various parts of police searches and seizures and does so in a very approachable manner.  The article does not explore how these problems can be solved.  This is not surprising because virtually all of the practices the article discusses have been upheld by the United States Supreme Court.  This means that short of legislative action or systemic changes to police enforcement policies, changes to the status quo face a very difficult uphill battle.

My next project will be to argue that there may be a solution within reach.  Drawing on Derrick Bell's theory of interest convergence, I will outline how recent developments in the Supreme Court's Fourth Amendment jurisprudence indicate that the Court may be willing to give new force to this often-neglected safeguard.  I will then note that current discussions of government surveillance practices and the executive's use of lethal force present an excellent opportunity for a paradigm shift in Fourth Amendment law.  Finally, I warn against potential distractions that may undermine the coalition of interests that the current political climate can foster.

My hope is to have this written and sent out by the end of the current law review slating cycle.  At the same time, I will plan to write a number of posts that correspond to the various parts of the essay I will be writing in order to summarize and outline the arguments I intend to make.  This post is dedicated to the introduction, a more developed version of which appears after the jump.

Lessons on Empirical Legal Research Through a Twombly/Iqbal Lens

Through the Civil Procedure and Federal Courts Blog, I learned of the existence of this article by David Freeman Engstrom a while back, but due to the hectic schedule of wrapping up work I was not able to read it until my flight back to Iowa.  Once I was finally able to read it, I found the article to be very informative and interesting, and I recommend that anybody who is interested in Civil Procedure, the ramifications of Twombly and Iqbal, or empirical legal research in general to read it.  The full citation is: David Freeman Engstrom, The Twiqbal Puzzle and Empirical Study of Civil Procedure, 65 Stan. L. Rev. 1203 (2013).

Here is the (mercifully short) abstract:

This essay, written for a Stanford Law Review issue exploring “The Empirical Revolution in Law,” offers a critical assessment of the large body of empirical scholarship examining the effect of the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal on judicial and litigant behavior and then uses the critique to make some broader observations about the past, present, and future of empirical study of civil procedure.

The article offers some good examples of empirical legal studies of the impact of Twombly and Iqbal -- the two cases that raised the standard of proof required in civil pleadings.  While many commentators theorize and lament that these cases would create a sea change in civil procedure, the satisfactory studies apparently show that while some changes have occurred, they are not as substantial as the changes forecasted or supposedly demonstrated by less-satisfactory studies.

I found the most informative portion of the article to be that beginning on page 1213 which detailed the missteps of commentators discussing Twombly and Iqbal's impact.  Among other problems, the article discusses sampling bias, failure to include control groups, and the danger of using Westlaw or LexisNexis in generating samples of cases for legal research.  I mentioned in this earlier post that I had come across some scholarship that appeared to make these errors, but Engstrom's article uncovers the depth and widespread nature of these errors in many of the published studies of these cases.

I think that this article, or in the very least, the portions of the article discussing the systematic errors made by scholars studying Twombly and Iqbal are very helpful for law journals' articles editors who may not be entirely familiar with what good empirical legal research looks like.  Engstrom tells a good cautionary tale, and provides an approachable list of missteps that should be identified and avoided, both by authors and by law journals.

Another Reason I Don't Like Section 230 of the Communications Decency Act

I mentioned section 230 of the Communications Decency Act in this previous post, but I will briefly discuss it again here.  Under section 230, plaintiffs are typically barred from suing websites for defamation or other causes of action arising from the conduct of third parties who post the offending material on the website.

Take this flagrantly defamatory post as an example.  This post contains almost all of the elements that make commentators upset about section 230.  For much of the post, the author implies that I have a criminal history so extensive that it reaches back beyond the date of my birth.  I would love to sue the author of this post, but unfortunately his blog and his posts are all anonymous.  The author does refer to me as a "fellow" law student, indicating that he too may be a law student.  While normally this would preclude recovery in a lawsuit due to insolvency of the defendant, the possibility remains that the author of this post is one of those lucky students who has received a job offer in these troubling economic times.

Could I sue Wordpress for accommodating this attack on my character?  The answer, unfortunately, is no.  Under section 230, Wordpress is not to be treated as the publisher of anything posted on its website by third parties.  Section 230 has been further interpreted that this will hold true even if Wordpress has a policy of policing and removing offending content.

Courts and the legislator justify section 230 because it promotes the use of online platforms and prevents chill that may arise in the event that websites could be sued for the conduct of third parties who post on the website.  This is an admirable goal, although it may need some revision in light of the internet no longer being a developing medium of communication and expression.  In the meantime, however, section 230 remains, and those of us who are defamed by anonymous fellow law students must continue to suffer.

Delving Into Undue Prejudice: A Study in Profile Evidence with Denny Crane

In my evidence class last semester, we used George Fisher’s popular casebook, which began our study of evidence with a walkthrough of evidentiary “basics”: relevance (FRE 401) and unduly prejudicial evidence (FRE 403).  As the course progressed, these concepts tended to fade into the background – often playing the part of backup arguments in the event that a hearsay or character evidence objection seemed too simple or ill-founded.

While this treatment of relevance and undue prejudice was probably necessary given the time constraints of the class, this quick treatment may cause classes to overlook the rich doctrine of these rules.  Despite the relatively simple text of bans on unduly prejudicial evidence, these rules are the vehicle for an intricate web of traditional and judge-made doctrine regarding the admission of specific types of evidence.

Take, for example, profile evidence.

Testimony is profile evidence when it seeks to infer that a defendant committed a crime because that defendant fit the profile of a guilty person.  This evidence appears in a variety of contexts, most infamously in cases involving drug couriers.  In a typical case of profile evidence, a police expert is called to testify about the features of a “typical” criminal.  For instance, a typical drug courier would purchase a one-way plane ticket, would pack lightly, would walk quickly, and would meet a contact person at his/her destination.  The expert would then note how the defendant fit all of these features.

Or, to borrow an example from Boston Legal, consider the profile of the typical person looking to solicit sex for a fee in a restroom.  In “Oral Contracts” (Episode 8, Season 4), William Shatner’s character, Denny Crane, finds himself in an uncomfortable situation when he is arrested for this very crime:

Red Eye and Lawfares

One of my favorite shows is Red Eye.  It airs weeknights at 3:00 am Eastern Time on Fox News.  The show follows a panel format, with the host, Greg Gutfeld summarizing stories and asking snide and insulting questions to each member on the panel.  Gutfeld is accompanied by his “repulsive sidekick,” Bill Schulz and ombudsman, Andy Levy.  John Bolton, former ambassador to the United Nations, is the “President” of Red Eye.  Guests on the show include comedians, people like Paul Mecurio who claim to be comedians, Fox News contributors or anchors, politicians, and, as this post demonstrates, conspiracy theorists.

With this background, consider this recent post by Benjamin Wittes over at Lawfare.  Wittes makes it very clear that Lawfare, a blog about national security and law, is not to be confused with the Lawfare Project, run by Brooke Goldstein.  Wittes had never had occasion to distinguish the two organizations, but Red Eye intervened.

Red Eye is characterized by its informal presentation, with Gutfeld, Schulz, and guests often interrupting each other.  When the set falls silent during a guest’s point, it is a strong indication that something is going horribly wrong.  When Paul Mecurio interjects and tries to stop another guest from digging herself deeper into a hole, you can be positive that something awful is happening.

The one question I have after watching this video and reading Wittes’s reaction is whether Andy Levy, the ombudsman for the show, corrected Goldstein’s rant.  Levy conducts a “Post-Game Report” (formerly the “Halftime Report”) where he corrects the often numerous errors made by Gutfeld and the panelists.  Sometimes he goes out of his way to ridicule people who are not on the show.  I would be very surprised if Levy did not reply to Goldstein’s comments, and if I manage to find a video of this response, I will make sure to post it.

A Fizzled Debate Raises an Interesting Question About the Computer Fraud and Abuse Act

Exciting times over at the Volokh Conspiracy.

Stewart Baker posted about Michael Vatis’ post (which seems to have been removed).  Baker argued that the Obama Campaign’s practice of having workers log in to Facebook and use the campaign website’s software to create and send messages to their undecided friends constitutes a violation of the Computer Fraud and Abuse Act (CFAA).  Baker thought that this could be the makings of a new scandal for the administration.   

Orin Kerr then chimed in and pointed out that there was probably no violation of the CFAA, noting that the violation would probably only have occurred under a broad reading of the law that the Department of Justice holds.  Kerr notes that under the DOJ’s interpretation – that illegal, “unauthorized” access occurs whenever a user violates the terms of service on a website – everybody is probably guilty of violating the CFAA.

Baker ended up retracting his original post, noting that upon further review of Facebook’s terms of service, it appeared that the Obama Campaign had complied and did not violate the CFAA even under the DOJ’s broad interpretation.

While it appears that Baker’s original concerns about violating the statute were misguided, I feel like had Facebook’s terms of use not authorized the campaign’s practice, this situation would have been a harder case than Kerr argued.

United States v. Alaniz: A Case Study in Issue Conflation and Awkward Analysis

Over at the EvidenceProf Blog, Collin Miller posts about the recent Fifth Circuit case, UnitedStates v. Alaniz.  In this money laundering case, one of the codefendants, Magana, claimed that she did not realize she was helping her brother engage in criminal conduct.  To support this claim, Magana sought to admit evidence of a coworker who would testify that Magana was a naïve and gullible person.  The district court ruled against the admission of this evidence, concluding that even if Magana was naïve, she still could have acted knowingly or willingly in the money laundering scheme.  The Fifth Circuit affirmed this ruling, adding that the coworker’s testimony about Magana’s naïveté would have only incrementally supported her claim that she was not aware of the overall scheme.

Miller does not hold back in expressing his opinion on this ruling.  Miller labels the Fifth Circuit’s discussion of the naïveté evidence as “some of the worst analysis that I have ever seen by a federal appellate court.”  He also deems “Ridiculous” the conclusion that the coworker’s testimony would have only incrementally added to Magana’s defense, and argues that because this is the only evidence mentioned by the court that supports Magana’s naïveté claim, this evidence would have been the “centerpiece” of her defense.

I am in agreement with Miller that the district court’s reasoning for excluding the evidence was lacking.  If the reasoning of its decision were adopted universally, character evidence would become largely inadmissible, since people are always capable of acting in a manner inconsistent with their character.

On the other hand, I am not so sure that the Fifth Circuit’s analysis is as terrible as Miller argues.  The Circuit begins by noting that the district court has a great deal of discretion in making decisions regarding the admission of evidence.  This is worth mentioning because the lower court may have concluded that the coworker’s friendship with Magana may have indicated bias and therefore decreased the probative value of the testimony.  Alternatively, the coworker would probably not have been able to testify about Magana’s gullibility when it came to organizing her finances – making the character evidence less probative regarding the central issue of the case.  While the district court did not engage in any of this analysis, it was probably worth mentioning that the court had the discretion it did.

Moreover, I think that Miller overstates the argument against the Fifth Circuit’s analysis of the incremental nature of the coworker’s testimony.  While Magana’s claim of naïveté may have been her full defense, it is worth noting the volume of evidence against.  Over the course of the money laundering scheme, Magana received $220,000 in wire transfers into eleven bank accounts that she controlled.  Money was also wired out of these accounts to other individuals involved in the scheme.  Magana was aware that her brother was using a false name, and three cars were purchased in Magana’s name over the course of the scheme.  Even if the coworker’s testimony about Magana’s naïve character would have been the bulk of her defense, I think the Fifth Circuit would probably be right to conclude that any error in excluding this testimony was harmless beyond a reasonable doubt.  Even though the coworker’s testimony was Magana’s full defense, that doesn’t change the fact that the defense would have almost certainly failed to exonerate her.

That said, the court should have been more explicit in stating why the coworker’s testimony would have failed to make a difference.  Moreover, I think that this analysis is better suited to a harmless error discussion, and I do not think that it is proper for the court to lump all of the discussion together in the context of why the court acted within its discretion.  Here, the relative probative value of evidence was better suited for a discussion of harmless error – not for analysis over whether error had occurred in the first place.