Did Ted Cruz Admit that a Constitutional Amendment is Needed to Preserve Same-Sex Marriage Bans?

From Josh Blackman's Blog, I learned that Senator Ted Cruz has made a strong statement against the Supreme Court's refusal to address a number of appellate opinions holding state bans on same-sex marriage unconstitutional.

Cruz's reaction condemns the Supreme Court's "extremely broad interpretation" of the Fourteenth Amendment. He goes on to say:

Nothing in the text, logic, structure, or original understanding of the 14th Amendment or any other constitutional provision authorizes judges to redefine marriage for the Nation. It is for the elected representatives of the People to make the laws of marriage, acting on the basis of their own constitutional authority, and protecting it, if necessary, from usurpation by the courts. 

Marriage is a question for the States. That is why I have introduced legislation, S. 2024, to protect the authority of state legislatures to define marriage. And that is why, when Congress returns to session, I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws.

Cruz's language is not particularly surprising in light of the rapidly approaching primary season. Speaking out against same-sex marriage, while simultaneously criticizing "judicial activism at its worst" is likely to energize conservatives.

But Cruz's statement also illustrates the magnitude of the momentum behind the push for the legalization of same-sex marriage. Cruz certainly devotes much of his statement to arguing against striking down same-sex marriage bans on constitutional grounds. But by focusing on a constitutional amendment as the avenue for preserving same-sex marriage prohibition, Cruz seems to be admitting that defending the constitutionality of same-sex marriage bans is no longer a feasible prospect.

Cruz may well pursue his amendment, and it may win him some votes down the road. But ultimately, the admission that same-sex marriage bans will almost inevitably fail judicial scrutiny is the most important takeaway from Cruz's statement.

The Longest Judicial Opinions

Since starting law school over three years ago, I have occasionally wondered how long the longest judicial opinion is. While I have already blogged about the world's longest constitution, the length and origin of the longest judicial opinion has remained a mystery to me.

But this weekend, I decided to finally look into the issue -- and I found that somebody has already done the work at finding the longest opinion. The Trial Warrior blog has this 2012 post on the longest judgments in the world. Only one of the top seven judgments originates in the United States, and it ranks as sixth on the list. While all of the opinions on the list are hefty, the top three are in a class all their own.

The longest judicial opinion to originate in the United States appears to be the the Federal District Court for the District of Columbia's opinion in McConnell v. FEC. There, three judges issued a per curiam opinion followed by their individual opinions. The entire ruling takes up 743 pages.

But the longest opinion in the United States does not even come close to the longest opinion in the world. In 2010, the Allahabad High Court released an 8,000 page opinion in the long-running Ayodhya dispute. The dispute centered on the ownership of a plot of land with religious significance to a variety of parties, and had been in the courts for 60 years before the High Court ruling.

Commentators have criticized the United States Supreme Court for its increasingly lengthy rulings. But the Court has a long way to go if it wants to break into the ranks of the longest opinions in the world.

Inconsiderate Car Owners Beware: The California Vehicle Code on Bad Parking and Car Alarms

This weekend, I conducted some research of the California Vehicle Code, searching for provisions that authorized law enforcement officers to remove annoying vehicles. In particular, I was interested in learning what power law enforcement officers have over cars that obstruct driveways (or garages) and over vehicles with perpetually-sounding car alarms. This research may or may not have been based on the conduct of people in my neighborhood.

The California Vehicle Code generally prohibits law enforcement officers from towing and impounding vehicles. But section 22651 of the Vehicle Code outlines circumstances where law enforcement officers are permitted to remove vehicles. Many of these circumstances are understandable, including scenarios where a vehicle is left in the middle of a highway (subsection (b)), or when a vehicle has been reported stolen (subsection (c)).

But for those offended by inconsiderate parking, the most helpful of section 22651's subsections is (d), which allows law enforcement officers to tow a vehicle:

When a vehicle is illegally parked so as to block the entrance to a private driveway and it is impractical to move the vehicle from in front of the driveway to another point on the highway.

A skeptical reader might point out that the vehicle needs to be "illegally" parked, so section 22651(d) might not be enough to authorize the towing of vehicles parked in front of driveways. Fortunately, section 22500 of the Vehicle Code provides:

No person shall stop, park, or leave standing any vehicle whether attended or unattended, except when necessary to avoid conflict with other traffic or in compliance with the directions of a peace officer or official traffic control device, in any of the following places:

. . .

(e) In front of a public or private driveway, except that a bus engaged as a common carrier, schoolbus, or a taxicab may stop to load or unload passengers when authorized by local authorities pursuant to an ordinance.

 People who leave their car alarms running are apparently so irritating that they have their own special section of the Vehicle Code. Section 22651.5 states, in part:

(a) Any peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, or any regularly employed and salaried employee who is engaged in directing traffic or enforcing parking laws or regulations, may, upon the complaint of any person, remove a vehicle parked within 500 feet of any occupied building of a school, community college, or university during normal hours of operation, or a vehicle parked within a residence or business district, from a highway or from public or private property, if an alarm device or horn has been activated within the vehicle, whether continuously activated or intermittently and repeatedly activated, the peace officer or designated employee is unable to locate the owner of the vehicle within 20 minutes from the time of arrival at the vehicle's location, and the alarm device or horn has not been completely silenced prior to removal.

When reading this law, I was at first disappointed, thinking it might only apply to areas around colleges or universities. But the breadth of the statute quickly expands to cover any vehicle parked in a residence or business district, meaning that it would likely apply to most vehicles parked within earshot of people's homes.

People who feel that they can park in obstructive manners and let their car alarms ring into the late hours of the evening should beware of these laws. While law enforcement officers are not required by these laws to remove vehicles, I suspect that it would not be too much trouble to do so, especially if people in the area notify law enforcement.

How to Get Away With Unethical Lawyering: Episode 1

I recently watched the pilot episode of ABC's How to Get Away With Murder. I blogged about the show back in May when the trailer first came out. I noted that the show appeared to be "(1) an overly-dramatic reiteration of the second half of Legally Blonde; and (2) a professional responsibility issue-spotter."

After watching the pilot, I think it's safe to say that I was right.

The show is centered around a criminal law professor, Annalise Keating (played by Viola Davis), at a fictional law school in Pennsylvania. She teaches criminal law while simultaneously running a highly successful criminal defense firm out of her home. For her assignments, she tells students the facts of cases she is defending and asks them to provide their own defense theories. Students who do the best are promised a job at her law firm.

The show also highlights several of her students, in particular, Wes Gibbins, played by Alfred Enoch. Gibbins, a bright-eyed first year law student starts out by making the classic mistake of not being prepared for the first day of class. He soon dives into Keating's world of criminal defense and intrigue.

With a premise like this, how can't there be a slew of ethical violations? After the break, I discuss the specific ethical problems that I noticed in the pilot episode. Because the show seems to take place in Pennsylvania, I will use Pennsylvania's Rules of Professional Conduct in determining whether ethical violations have occurred, and any reference to a "rule" will be to these rules unless I note otherwise. Warning, spoilers ahead.

Well-Intentioned, But Flawed, Advice on Student Note Submission

Over at The Girls Guide to Law School, Jonathan Burns has this post on advice for writing and publishing a law review note. While I am all for encouraging students to write, submit, and publish papers, I think that Burns's advice, while well-intentioned, contains some mistaken suggestions that could hinder a paper's chances of publication.

Burns advises that students not devote significant time to bluebooking and editing the paper, urging students to throw their bluebooks and Chicago Manuals of Style "out the window." This may initially seem like good advice from the perspective of somebody who has been through the publication process. After several rounds of receiving, reviewing, and returning edits, it seems that any problems with the paper can be fixed after submission, meaning polishing the initial draft is a poor use of time.

While there will indeed be an editing process that will improve the quality of the paper both above and below the line, articles editors will probably not be enthusiastic about a paper unless they enjoy reading the paper. Consistent stylistic and grammatical shortcomings make it very difficult to get through a paper, even if the subject matter is interesting. Even more significantly, editors may conclude that poor grammar, style, and even bluebooking are indicators for poor research. Earning the trust of editors is crucial, and losing that trust to something as easy to remedy as poor editing shouldn't happen.

Burns has some other good pointers, but some of them should be qualified.

North Dakota: Law Enforcement Officers Use Drone to Locate Fleeing Suspect

Fox Business reports that Grand Forks County Sheriff's deputies used a drone to locate suspects who fled the scene of a traffic stop. From the article:

An unmanned aircraft unit led by the Grand Forks County sheriff's department flew its first nighttime mission after four suspects fled during a traffic stop, department officials said Monday. 

Officials said the drone team was contacted after a K-9 unit was unable to locate the occupants of a vehicle that was pulled over about 2:20 a.m. Sunday in rural Larimore, about 30 miles west of Grand Forks. 

The aircraft discovered one of the suspects in a corn field, although he ran away before deputies could find his location, officials said. Two suspects were eventually arrested on the scene, and a third was taken into custody later.

North Dakota has a history of making the news with regards to law enforcement drone use. In 2011, Nelson County Sheriff's deputies used a predator drone for aerial surveillance while investigating and ultimately arresting a suspect. The suspect's Fourth Amendment challenge to the use of the drone did not succeed.

The Fox article includes some commentary concluding that the Grand Forks incident does not raise any legal concerns. I think that is correct. North Dakota has no laws restricting the use of drones by law enforcement. And the drone in this case was used to conduct aerial surveillance of a person's outdoor movements, so there does not appear to be any infringement on a Fourth Amendment reasonable expectation of privacy.

It is also worth noting that this sort of drone use would be permitted in states with warrant requirements for government drone use as long as the states include an exception to the warrant requirement in scenarios that involve fleeing suspects. Illinois, for example, includes an exception to its warrant requirement in Section 167/15(3) of its drone regulations in cases where "swift action is needed to . . . forestall the imminent escape of a suspect."

State legislatures that are considering or debating laws requiring warrants for drone use should give serious thought to including similar exceptions to their warrant requirements. The most recent North Dakota incident shows how drones can be effective at locating fleeing suspects at night. And if police have the technology to easily locate fleeing suspects, there will be less pressure to use heightened, and possibly deadly, force to apprehend the suspect at the scene.

Brophy on the Fading Fall Submission Season for Law Journals

At The Faculty Lounge, Alfred Brophy observes that law journals seem to be cutting back on the number of articles they are accepting during the fall submission season. Brophy writes:

It seems like a lot of journals were announcing on bepress and scholarstica that they were already full for the year this summer and telling us to check back in the spring of 2015. The few law review editors I've had a chance to speak with tell me that they had very few slots left by mid-August. This causes me to wonder -- and I'm guessing other people have speculated on this, too -- whether we're essentially moving ot one submission window, in the spring? I would think this would have a lot of negative consequences for people up for retention, promotion, and tenure, because I'm guessing that a lot of people are finishing their capstone piece in the summer and looking to place it in the fall.

Law journals generally have two submission windows -- one in the spring, and one in the fall. Most journals bring on their new boards and staff members in the spring, and begin accepting submissions for their new volumes during that time, so there is generally not a shortage of space for spring submissions. But sometimes, journals may end up filling all or most of their volumes in the initial spring submission season, which would lead to fewer acceptances in the fall.

If that trend is indeed taking hold, I would agree with Brophy that it is problematic. During the spring submission season, articles editors have only just begun their roles, and have probably not had very much experience reading legal scholarship. But if my experience is any guide, the learning curve for articles editors is steep, and even by the end of the spring submission season, articles editors tend to be much better at spotting quality legal scholarship.

Unfortunately, if editors seek to fill their volumes in the spring, they will be unable to apply their increased knowledge base and article selection skills in the fall submission season. While this may not be very much time for editors' skills to improve, I suspect that the improvement is still meaningful, and that cutting out the fall submission season would have a detrimental effect on the quality of scholarship that journals end up publishing.

As a final note, Brophy's article is related to one of Orin Kerr's suggestions for successfully placing law review articles. Kerr recommends that authors submit in the spring, which -- along with his other four suggestions -- is advice worth listening to.