Three of last term’s criminal cases dealt with mandatory minimum sentencing statutes, as do two of the new term’s.  The frequency with which these cases reach the Supreme Court underscores how ubiquitous mandatory minimums have become in federal criminal practice — a truly unfortunate state of affairs, given how clumsily these statutes are drafted and how badly they depart from sound sentencing policy.  In any event, an interesting question lurking in the background of many of these cases is whether the rule of lenity should be applied in the same manner as it would be in a case involving a conventional criminal statute.

The rule of lenity indicates that ambiguous criminal statutes should be interpreted in favor of the defendant.  As I suggested in my previous post, the Court does not seem especially consistent in its application of lenity and often adopts the government’s interpretation of statutes that strike me as clearly ambiguous (if that is not an oxymoron).  A good example from last term is United States v. Hayes, 129 S. Ct. 1079 (2009).  I agree with the conclusion of Chief Justice Roberts’s dissenting opinion: “This is a textbook case for application of the rule of lenity.”

In comparison with other criminal statutes, I have not detected any difference in the Court’s application of lenity to mandatory minimums.  Last term, though, Justice Breyer offered an interesting argument that the rule of lenity has “special force in the context of mandatory minimum provisions.” 

The argument appeared in Breyer’s dissenting opinion in Dean v. United States, 129 S. Ct. 1849 (2009).  The gist of his position is that an overly aggressive application of lenity is less harmful in the mandatory minimum context than elsewhere.  Here is the argument:

[A]n interpretation that errs on the side of exclusion (an interpretive error on the side of leniency) still permits the sentencing judge to impose a sentence similar to, perhaps close to, the statutory sentence even if that sentence (because of the court’s interpretation of the statute) is not legislatively required. . . .

On the other hand, an interpretation [of the statute at issue in Dean] that errs on the side of inclusion requires imposing 10 years of additional imprisonment on individuals whom Congress would not have intended to punish so harshly. . . [S]uch an interpretation, by erroneously taking discretion away from the sentencing judge, would ensure results that depart dramatically from those Congress would have intended.

Breyer’s point seems to me a good one.  And, although it appears in a dissent, the argument was not addressed, much less rejected, by the majority.  This should, in other words, be a viable argument for advocates to advance in other mandatory minimum cases.

Earlier posts in this series:

• Do the Justices Play Nicely Together?
• Ambiguity Is Ambiguous

But what explains his opinions in every abortion-related case that has come to the court since Scalia became a justice in 1986 is not his Catholicism but his “originalist” interpretation of the US Constitution, the author of a new biography of Scalia said Monday.

Speaking at an “On the Issues” forum at Marquette Law School, Joan Biskupic told host Mike Gousha that Scalia has “parallel passions,” Catholicism and the law.

”You just cannot forget that he’s so darned conservative on the Constitution, independent of his Catholicism,“ Biskupic said. Scalia simply does not see anything in the text of the Constitution that supports giving a woman a right to have an abortion.

Biskupic said she found in researching Scalia’s life that his views on the Constitution have been consistent for all his adult life. People she talked to from each stage of his life described him as an originalist.

Biskupic described Scalia as a “many-layered” person.

She said he is charming, gracious, tough, bullying, arrogant, a lot of fun, and prickly, at different times. She quoted Justice Ruth Bader Ginsburg saying, “Sometimes I’d like to strangle Nino, but I love him.” Ginsburg and Scalia are philosophical opposites on many legal matters, but are close personal friends. On the other hand, Biskupic said, as much as Scalia and Justice Clarence Thomas are close on the court, they are not close socially because, in the words of Thomas, Thomas likes to go home and watch college football while Scalia likes to go home and listen to opera.

Biskupic interviewed Scalia on the record a dozen times for her book, even after he initially said he wouldn’t agree to talk to her. He changed his mind after she saw him at a social event and began describing what she had found during visits to Trenton, N.J., where Scalia was born.

Biskupic, who covers the Supreme Court for USA Today, said that, at 73, Scalia is at the apex of his career because his influence has grown and he can attract support from other justices, including Chief Justice John Roberts and Justice Samuel Alito Jr., to put together majorities in some cases. In some prior periods, when his views were in a clear minority, Scalia found being on the court so frustrating that he considered resigning, she said.

Scalia is “an amazing stylist” when it comes to his written opinions, she said, which is one reason his opinions are so widely read. “He’s so clever, so engaging in his writing,” she said.

Biskupic noted a little-known Milwaukee touch to Scalia’s life – he spent a summer as a clerk at Foley and Lardner between his second and third years of Harvard Law School. But he did not want to come back to Milwaukee to practice after he graduated.

Biskupic’s book, “American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia,” was published by Sarah Crichton Books. Biskupic received a bachelor’s degree from Marquette and covered the Supreme Court for the Washington Post before joining USA Today. She previously authored a biography of Justice Sandra Day O’Connor.

When Heller was decided, I was reminded of United States v. Lopez, 514 U.S. 549 (1995), in which the Court seemed to overturn a half-century of precedent on the scope of Congress’s Commerce Clause power.  A revolution (or, perhaps more accurately, a counter-revolution) seemed afoot.  I was a law student then, and I vividly recall — just hours after Lopez was handed down – one of my professors announcing in class, only half facetiously, that the Supreme Court had just overturned the New Deal.  Then, when I clerked for a federal judge after law school, I recall several defendants raising Lopez challenges to federal criminal statutes.  But it all came to nought.  The lower federal courts never really bought into the Lopez revolution — if you keycite Lopez today, you will see 267 cases listed as either declining to extend or distinguishing Lopez – and the Supreme Court itself effectively threw in the towel with its decision in Gonzales v. Raich, 545 U.S. 1 (2005).

I have been wondering if the Heller revolution would go the way of the Lopez revolution.  And, indeed, it has seemed generally to be business as usual in the circuit courts post-Heller, with little sense that the intermediate appellate judges have any inclination to read Heller for all it is worth.

But the Seventh Circuit’s decision last week in United States v. Skoien (No. 08-3770) (Sykes, J.) suggests that Heller may have more life than Lopez. 

In 2006, Steven Skoien was convicted of domestic battery in Wisconsin state court and sentenced to two years of probation.  In 2007, probation agents learned that Skoien had purchased a deer-hunting license.  A search of his home and truck uncovered a shotgun, an orange hunting jacket, a deer carcass, and similar evidence.  Skoien admitted that he had used the shotgun to go hunting earlier that day.  A federal grand jury then indicted Skoien for possessing a firearm after having been convicted of a domestic-violence misdemeanor in violation of 18 U.S.C. § 922(g)(9).  Skoien entered a conditional guilty plea, reserving his right to litigate whether the application of § 922(g) to him violated his Second Amendment rights.

On appeal, the Seventh Circuit could have rejected Skoien’s claim with little effort, for the Heller Court itself stated that ”nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.”  128 S. Ct. at 2816.  Indeed, the Court went so far as to characterize such prohibitions as “presumptively lawful regulatory measures.”  Id. at 2817 n.26.  The government’s argument in Skoien rested almost entirely on this language.  Under a minimalist, but still plausible, reading of Heller, the government should have needed to say little more.

Remarkably, though, the Seventh Circuit used Skoien as an opportunity to develop a new test for Second Amendment claims and to signal the government that it could not necessarily rely on the Heller presumption to defeat such claims.

More specifically, the court adopted a two-part test:

First, some gun laws will be valid because they regulate conduct that falls outside the terms of the right as publicly understood when the Bill of Rights was ratified.  If the government can establish this, then the analysis need go no further.  If, however, a law regulates conduct falling within the scope of the right, then the law will be valid (or not) depending on the government’s ability to satisfy whatever level of means-end scrutiny is held to apply; the degree of fit required between the means and the end will depend on how closely the law comes to the core of the right and the severity of the law’s burden on the right.  (Op. at 10.)

Applying the first part of the test to Skoien’s claim, the fact that his gun was “a shotgun used primarily for deer hunting” seemed enough to bring his asserted right within “the terms of the right as publicly understood when the Bill of Rights was ratified”:

[I]t would be odd to argue that a conventional hunting gun is wholly unprotected by the Second Amendment.  Heller referred to the founding-era importance of the right to bear arms “for self-defense and hunting,” and a long gun used primarily for hunting is obviously useful for defensive purposes as well.  (12)

The court did question, though, whether “a person convicted of a domsestic-violence misdemeanor is categorically excluded from exercising the Second Amendment right as a matter of founding-era history and background legal assumptions.”  (13)  In this regard, the court noted scholarly debate over whether felons lost the right to bear arms duing the founding era.  The court did not have to resolve the debate, however, because the government was not pressing historical arguments.

It is unfortunate, then, that much remains uncertain about the first, history-oriented part of the new Second Amendment test.  I, for one, hope that the court will not lay much emphasis on this part of the test.  Gun technology, the social role of guns, and legal culture generally have changed so much since the 1790’s that the historical analysis is bound to turn on strained and uncertain analogies to practices from long ago.  Why not just keep things at a high level of generality (e.g., it was generally accepted that citizens had a right to own long guns useful for hunting) and move on?  The fact that there is or is not a long tradition of excluding a particular class of people from gun ownership can be taken into account in the second part of the test, without fetishizing the legal understandings of one particular, long-ago period of our history.

In any event, the Skoien court moved on to the second part of its new test.  This inquiry required the court to decide whether to apply the strict or intermediate standard of review to Second Amendment claims.  The court suggested that the answer to this question would depend on the nature of the conduct being regulated.  On the one hand, “gun laws that severely restrict the core Second Amendment right identified in Heller — that of ‘law-abiding, responsible citizens to use arms in defense of hearth and home’ — should receive exacting scrutiny.”  (15)  On the other hand, “applying strict scrutiny to all restrictions on gun rights is obviously incompatible with Heller’s dicta about ‘presumptively lawful’ firearms laws.”  (16)  In the end, the court decided to employ intermediate scrutiny because the “Second Amendment challenge in this case is several steps removed from the core constitutional right identified in Heller.”  (17)  Specifically, Skoien’s prior conviction meant that he was not a “law-abiding, responsible citizen” and Skoien did not “key[] his constitutional challenge to the right of self-defense.” 

Query whether any type of prior conviction (no matter the age or nature of the offense) would be enough to remove a defendant from the protection of strict scrutiny.  Query also whether the standard of review would have been different if Skoien had said at the time the gun was discovered, “Yes, I just used the gun for hunting, but the real reason I got the gun was to protect my home.”  (Until the analysis is clarified, defense counsel would do well to frame their Second Amendment claims as far as possible along self-defense lines, as opposed to hunting rights.)

The court elaborated on the intermediate scrutiny analysis this way:

What this means more specifically is that for gun laws that do not severely burden the core Second Amendment right of self-defense there need only be a “reasonable fit” between an important governmental end and the regulatory measure chosen by the government to serve that end.  (22)

Skoien did not dispute that there was an “important government end” behind § 922(g)(9): the reduction of domestic gun violence.  Thus,

The disputed question here is the relationship between the government’s means and its end — whether there is a “reasonable fit” between the perpetual disarmament of domestic-violence misdemeanants and the important goal of preventing gun violence against domestic intimates.

Because the record on “fit” had not been adequately developed, the court remanded to give the government another opportunity to carry its intermediate-scrutiny burden.

Some closing obervations by the court in Skoien invite speculation about how demanding the court intends for intermediate scrutiny to be.  The catch-phrase “reasonable fit” has little meaningful content on its own; it will be up to the court to develop the standard in common-law style.  And Skoien provides no real assurance that the Heller revolution will indeed have a lasting impact in the Seventh Circuit.  In addition to rejecting strict scrutiny in all but a (not clearly defined) “core” of Second Amendment cases, the court also made clear that intermediate scrutiny “tolerates laws that are somewhat overinclusive.”  (25) 

With respect to § 922(g)(9) more specifically, the court noted approvingly that it “targets a specific class of violent offender.”  (26)  On the other hand, the court was also appropriately concerned that the statute is overinclusive in several respects:

The firearms prohibition exists indefinitely; it contains no exceptions nor any basis for potential restoration of gun rights; and it does not require an individualized finding of risk that the domestic-violence misdemeanant might use a gun in a future offense.  (26)

Given this expression of concern, the tea leaves are difficult to read.  Assuming that Skoien (or a similar § 922(g)(9) case) returns to the Seventh Circuit with a more developed record, we should get a much clearer indication of how serious the court is about protecting gun rights in a post-Heller world.

In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence.

Stirring prose, no?  One would hardly guess that two years of a man’s life were riding on this characterization of an obscure grammatical norm.  Whatever else might be said for or against textualism, it does lead to opinions in which there is sometimes a disconcerting disconnect between the Court’s dry rhetoric and the human realities of crime and punishment.

In keeping with the Court’s current textualism, comparatively little attention is paid in the six opinions to legislative history, which is either ignored altogether or wheeled out as an apparent afterthought.

Of course, even textualists like Scalia acknowledge that texts are sometimes ambiguous.  In such circumstances, rather than resort to legislative history or policy considerations, textualists will look to the traditional canons of statutory construction.  One of these is the rule of lenity, which indicates that ambiguous criminal statutes should be interpreted in favor of the defendant. 

For instance, in the previous term, the Court (through a plurality opinion authored by Scalia) invoked the rule of lenity as a basis to interpret the federal money-laundering statute narrowly.  (I posted on the case, United States v. Santos, 128 S. Ct. 2020 (2008), here.) 

But the rule of lenity did not fare so well last term.  In its pro-government decisions, the Court’s majorities summarily rejected defendants’ (and dissenters’) arguments that statutes were ambiguous, while the authors of its pro-defendant decisions apparently felt it unnecessary to invoke lenity.  This pattern is odd, for each case featured colorable textual arguments on both sides — this would seem good prima facie evidence of ambiguity.  However, as the Court explained in Dean v. United States, 129 S. Ct. 1849, 1856 (2009):

The simple existence of some statutory ambiguity, however, is not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree.  To invoke the rule, we must conclude that there is a grievous ambiguity or uncertainty in the statute.

One wonders where exactly the line is between simple ambiguity and “grievous ambiguity.”  The Court’s opinions provide no clue.  Simply put, the ambiguity standard itself suffers from ambiguity.  This is, of course, in considerable tension with the whole textualist project, which aimed to bring greater objectivity and determinacy to statutory interpretation than could be provided by intentionalism.

Eight years later, Christianson and Rivera pled guilty to destroying government property and were sentenced to two and three years of prison, respectively.  On appeal, Rivera challenged the district judge’s decision to apply the terrorism enhancement of the sentencing guidelines.  He argued that he was not a terrorist because his motivation was “the hope of saving our earth from destruction.”  The Seventh Circuit, however, rejected his argument and affirmed the sentence in United States v. Christianson (No. 09-1526) (Manion, J.). 

Following the application notes contained in the guidelines, the court relied on the definition of terrorism set forth in 18 U.S.C. § 2332b(g)(5)(B): the commission of a listed crime (including destruction of government property) ”calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”  In light of that definition, it was not hard to conclude that Rivera qualified as a terrorist:

Here, the purpose behind defendants’ actions was to further ELF’s political agenda: the end to industrial society. . . . Because the defendants do not look the part of our current conception of a terrorist does not separate them from that company.  Indeed, it doesn’t matter why the defendants oppose capitalism and the United States government — if they use violence and intimidation to further their views, they are terrorists.

I agree there is little legal (or, I suppose, moral) basis to distinguish criminals who are motivated by extremist environmental views from criminals who are motivated by extremist religious views.  But I think it is an interesting question whether a passionate desire to reform society (on environmental, religious, or any other grounds) ought to be treated as an aggravating sentencing factor.

Imagine a hypothethetical variation on Christianson: Although Rivera was motivated by a desire to change government policy on genetic engineering, Christianson was only in it for the thrill of sneaking into a government facility in the middle of the night and destroying something.  Is it right that Rivera ought to be punished more severly than Christianson based on his motive?  At least he was seeking the greater good and not acting in a purely self-interested manner — arguably, his motives are mitigating, not aggravating, relative to hers.

“That’s the way to go,” said Feingold, who has been highly critical of the long confinement, without trial, of the suspects at the military prison in Guantanamo Bay, Cuba.

At the same time, US Attorney General Eric Holder Jr. announced that several other suspected terrorists will be tried in military courts. That group includes Ad Al-Rahim al-Nashiri, who allegedly planned another major attack, the bombing of the Navy destroyer Cole in 2000 in Yemen.

The decisions to go the two different routes in the cases will provide an interesting opportunity to compare civil and military handling of cases of this kind, Feingold told Mike Gousha, who moderated the session and who is a distinguished fellow in law and public policy at the Law School.

Feingold said bringing the Sept. 11 suspects, including Khalid Shaikh Muhammed, who has claimed he masterminded the attacks, into civil courts and allowing the justice system to proceed to a verdict on their cases is the appropriate course, said Feingold, a member of the Senate’s Judiciary Committee. “This advances not only our legal system, but our credibility in the world,” he said.

Feingold said that he is an opponent of the death penalty, but, “If there is a place where the death penalty should be administered, it is probably this case.” The bombings of the World Trade Center and the Pentagon and lethal crash of a commercial flight in Pennsylvania killed almost 3,000 people.

Feingold praised President Barack Obama for the way he is handling decisions about the future of military involvement in Afghanistan. Feingold said Obama was right to take his time and to consider all options, including a plan for phased withdrawal that Feingold has advocated. Several months ago, Feingold became the first senator to back such a plan. But he said Obama appears to be taking the possibility seriously.

“Why is it we are continuing this huge land war in Afghanistan?” he asked. “It doesn’t add up.” He said al-Qaeda has moved its bases out of Afghanistan and he does not think an end to American military involvement would mean a return of al-Qaeda power in the country.

Addressing other subjects, Feingold said:

• He hopes a health care plan can be passed by Congress by the end of January, but it is “impossible” that action will be completed this year. He emphasized his support for a “public option” in a health care plan, a system in which a government-run plan would provide insurance to some people. He said, “It would be very hard for me” to support a bill that did not include such an option.
• If Chief Justice John Roberts comes down strongly in favor of overturning a 1990 decision (Austin v. Michigan Chamber of Commerce), “it will be one of the greatest lawless acts by a chief justice in the past 100 years.” A decision is expected soon in a case (Citizens United v. Federal Election Commission) that has become a broad review by the court of federal election laws, including the Austin decision, in which the court ruled 6-3 that it was constitutional to prevent corporations from spending their own money on political campaigns. Feingold said that during confirmation hearings in 2005, Roberts said he would be an umpire calling balls and strikes and would not make law himself. Feingold voted to confirm Roberts, drawing the ire of many liberals. Asked after his talk whether he would regret supporting Roberts if Roberts votes to overturn Austin, Feingold said such a step might give him “a moment of significant regret.” But he said that would depend not only how Roberts votes, but what he writes in support of his vote.
• A two-year program of tax credits to companies who create jobs or increase employees’ hours could create several million jobs and help the economy nationwide. Feingold said he saw a major part of his role in dealing with economic issues as advocating for such a plan.
• Immigration reform is an urgent issue, but he does not see federal action coming until “maybe late next year.”
• Development of a five- to seven-year plan to bring down the federal deficit is both responsible and necessary for economic recovery. Feingold said the deficit “is almost an obsession of mine in the Senate,” and he sometimes finds himself voting with the most conservative Republicans because of the need to exercise more restraint on federal spending.

Feingold ducked commenting on one major Wisconsin issue. Asked whether he had a position on a proposed transfer of power over Milwaukee Public Schools to Milwaukee’s mayor, he said that it isn’t a federal issue and he isn’t going to get involved.

He also said he wasn’t making an endorsement in a potential Democratic primary for governor in 2010, but “I think the world of Tom” Barrett. Milwaukee’s mayor is expected to announce whether he is running for governor in the next several days. “I would have no hesitation supporting Mayor Barrett for any office he wants to run for, other than running against me in a primary,” Feingold said.

Feingold’s visit to the Law School was part of the “On the Issues” series led by Gousha. About 150 people attended the session.

It is commonly thought that the Court is bitterly divided along ideological lines.  In criminal cases, the stereotypical picture in recent terms would look like this: four conservative Justices (Scalia, Thomas, Roberts, and Alito) vote for the government, four liberal Justices (Stevens, Souter, Ginsburg, and Breyer) vote for the defendant, and Justice Kennedy in the middle gets to decide what the law is.  The picture is not an attractive one, suggesting that most of the Justices decide cases on a knee-jerk basis, without really listening either to the advocates or to their own colleagues.

How well does the stereotype actually reflect reality?  The answer depends on what type of criminal case you are talking about. 

The point is nicely illustrated by comparing two sets of cases from last term: the statutory interpretation cases and the investigation (that is, search, seizure, and interrogation) cases.  As I have categorized the cases, there were six in each set.  (The cases are listed at the end of this post.)

The statutory interpretation cases do not look anything like the stereotype.  In these cases, the Court was required to interpret either a substantive criminal statute or a statute containing a mandatory minimum sentence.  In these cases, the Court was remarkably cohesive.  Three of the six decisions were unanimous, while the other three were 7-2.  That makes a grand total of six dissenting votes in six cases.  Those six votes were cast by four different Justices from across the ideological spectrum.  None of the conservative Justices voted for the government in all six cases, while none of the liberal Justices voted for the defendant all the time.  Indeed, conservative Justices Scalia and Roberts voted for the defendant more often than not (four of six cases).

The investigation cases conform much more closely to the stereotype.  Four of the six cases were 5-4 decisions.  In all, the six cases produced eighteen dissenting votes, or three times as many as the statutory interpretation cases.  Moreover, the divisions generally (although not always) followed the stereotypical ideological pattern.  In three of the four 5-4 decisions, the conservatives and liberals each voted as block, with Justice Kennedy casting the tie-breaking vote (siding sometimes with the conservatives and sometimes with the liberals).  In the six investigation cases, the four conservative Justices collectively cast exactly one pro-defendant vote.  Put differently, given twenty-four opportunites to vote for a defendant, the conservatives did so only once.  (This compares with fourteen pro-defendant votes by conservative Justices in the statutory interpretation cases.)

Although I haven’t attempted to quantify this, my impression is that the Justices’ rhetoric in the investigation cases was also considerably more heated.  In particular, there seemed to be charges flying from both sides that the other side was not honestly and consistently adhering to the doctrine of stare decisis.  I did not observe similar attacks in any of the statutory interpretation cases.

What accounts for the discrepancy between the two sets of cases?  One possibility is the triumph of Justice Scalia’s preferred methodology in one area: that is, textualism in the statutory interpretation area.  I’ll have more to say about the Court’s textualism in another post, but the key point for now is this: the statutory interpretation cases play out as exercises in determining the meaning of particular words in particular statutory contexts.  There is very little discussion of broader public policy considerations that would cut across specific statutes.  As a result, there does not seem to be a lot at stake in the statutory interpretation cases, and there are few obvious implications for the Justices’ commitments to their various competing visions of the criminal justice system.  When cases are framed this way, it should not be surprising that the Justices find it relatively easy to reach common ground.

By contrast, textualism provides little clear guidance in the investigation cases (what exactly makes a search “unreasonable”?) and plays little discernible role in the Justices’ reasoning.  Indeed, what the investigation cases are really about is the scope of extratextual exclusionary rules, which do implicate core ideological commitments on both sides of the political aisle.  To liberals, the exclusionary rules (closely associated with the Warren Court and the broader civil rights revolution of that era) represent an important symbolic commitment to individual libery and equal rights in the face of a criminal justice system that has all too often wielded its power in discriminatory ways.  To conservatives, the exclusionary rules represent everything that was bad about the 1960’s: collective security sacrificed in the name of individual liberty, elites overriding the will of the “silent majority,” and so forth.  The Justices write about the exclusionary rules in terms of costs and benefits, but in truth the costs and benefits are unknown and probably unknowable.  Given the lack of any objective measure, the cost-benefit balancing necessarily becomes ideological . . . and the Justices don’t play so nicely together.

Statutory Interpretation Cases — includes cases on substantive criminal and mandatory minimum statutes, but excludes cases on the habeas corpus statute and other procedural laws

• U.S. v. Hayes, 129 S. Ct. 1079
• Dean v. U.S., 129 S. Ct. 1849
• Chambers v. U.S., 129 S. Ct. 687
• Abuelhawa v. U.S., 129 S. Ct. 2102
• Boyle v. U.S., 129 S. Ct. 2237
• Flores-Figueroa v. U.S., 129 S. Ct. 1886

Investigation Cases — includes Fourth Amendment and interrogation cases

•  Herring v. U.S., 129 S. Ct. 695
• Arizona v. Gant, 129 S. Ct. 1710
• Montejo v. Louisiana, 129 S. Ct. 2079
• Corley v. U.S., 129 S. Ct. 1558
• Arizona v. Johnson, 129 S. Ct. 781
• Kansas v. Ventris, 129 S. Ct. 1841 

Hat tip to 1L Timothy Shortess.

How much is at stake? Included in the material was a list of how much each state could potentially receive. For Wisconsin, the figure was $150 million to $250 million.

It is unlikely Wisconsin actually will get that much. It appears there are some points where Wisconsin will score well (atmosphere for creating charter schools), and other points where Wisconsin will not do well (track record on closing achievement gaps, such as the one between white and black students).

Each state’s application will be judged by committees still being formed. The rubric assigns points to each of more than a dozen areas of interest, with a total of 430 possible points. Among the areas carrying high point potential: “Improving teacher and principal effectiveness based on performance,” 58 points; “turning around the lowest-achieving schools,” 40 points; and “ensuring successful conditions for high-performing charter schools and other innovative schools,” 40 points.

Make no mistake — this will be a competition. President Barack Obama made that point in his speech last week in Madison and Secretary of Education Arne Duncan underscored it in interviews accompanying the release of the final rules. Obama said this was much different than the usual federal program that makes sure everyone gets something. Duncan said there will be more losers than winners in the process. Furthermore, the final say on the grants lies with Duncan. Congress does not have to approve, which will reduce the interest in appeasing anybody (or everybody).

States have until mid-January to submit applications for the first of two rounds of awarding grants. That’s a big reason why Gov. Jim Doyle has been pushing for fast action by the Legislature on a range of proposals related to education. Some were approved last week, but the fate of others — the more controversial ones — remains to be seen. Still no word on whether there will be a special session of the Legislature in the next several weeks to consider ideas such as giving Milwaukee’s mayor the dominant power in governing Milwaukee Public Schools.

Is it required that Wisconsin approve mayoral control in Milwaukee to win Race to the Top money? There is nothing in the final rules that says you have to have mayoral control. But Duncan has a lot of latitude to make decisions on his judgment, and he is firmly partial to mayoral control. Doyle and Milwaukee Mayor Tom Barrett say that, as a practical matter, Duncan and the people who will score the grant applications will want to see approval of overhaul of MPS governance as a sign that Wisconsin is serious about change.

             The presentations spanned a broad array of issues and problems regularly confronted in civil litigation.   The strength of the presentations rested not just in their discussion of doctrine and rules, but in the panelists bringing to bear their experience and insights in preparing and trying cases.   Links to the written CLE material and the accompanying PowerPoint presentations will be posted on the Law School’s website later this week.

             Starting the day was Michael J. Cohen (L’86) of Meissner Tierney Fisher & Nichols SC, who underscored the important relationship between pretrial practice and outcomes at trial.  Drawing on his extensive experience as a commercial litigator, Mike addressed the duty to preserve evidence, especially electronic information, when a lawsuit appears on the horizon.  Mike emphasized the need to work with the client to understand what the law requires so that discoverable information is not destroyed, inadvertently or otherwise, thereby exposing the client (or counsel) to sanctions.  Pat Dunphy (L’76) of Cannon & Dunphy SC, addressed a different aspect of pretrial practice, namely, the creative use of requests to admit during discovery.  Pat described how he used requests to admit to obtain a binding judicial admission in a major product liability case that proved determinative of its outcome.

             Turning from the pretrial to the trial setting, the Hon. Patricia J. Gorence (L’77), a federal magistrate judge in Wisconsin’s Eastern District, spoke about the management of exhibits at trial.  Judge Gorence particularly emphasized some of the issues that arise in the use of electronic exhibits of various sorts, including the introduction of e-mails, website pages, and CGI animations.  Lynn Laufenberg (L’75), of the Laufenberg Law Group SC, then undertook the Herculean task of providing an overview of state law governing the admissibility of expert opinion testimony.  Lynn’s masterful lecture featured his own experience in working with a wide variety of experts, including a seasoned dairy farmer who turned out to be the critical witness in a stray voltage case.

             Leading the afternoon session was one of Wisconsin’s most accomplished women trial attorneys, Mary Lee Ratzel (L’81), of Peterson, Johnson, and Murray SC.  Drawing upon her considerable experience in defending complex civil cases, particularly medical malpractice actions, Mary Lee took up a variety of important issues related to expert testimony, including Wisconsin’s unique expert witness privilege, an expert’s reliance on inadmissible evidence, experts whose opinions “shift” between discovery and trial, and the use of learned treatises at trial.  Her partner, James T. Murray (L’74) then surveyed the law governing the lawyer-client privilege.  Jim focused attention on recurring problems regarding inadvertent disclosures by lawyers, the uncertain contours of the privilege where the client is a corporation, and the sticky problem of contacting employees, officers, and ex-employees of a corporate entity.  Closing the day was Timothy S. Trecek (L’93), of Habush, Habush & Rottier SC, who discussed two subjects that haunt personal injury litigation in particular: the collateral source rule and the admissibility of “other accident” evidence.  Tim addressed recent developments in litigation that have unsettled the long-standing rule that a tortfeasor cannot reap the benefits that might accrue to the plaintiff when, for example, a hospital accepts an insurer’s payment for less than the amount of its invoice.  Tim also skillfully laid out the intricate evidentiary steps required when lawyers want to put in proof of other accidents in order to prove causation, notice, or the existence of defects in a product.

             Next year’s conference will feature a docket of similarly stimulating issues and distinguished lawyers.  We have the good fortune to draw from the very deep well of Marquette trial lawyers to assist us.

Two and a half years after his first conviction, federal agents searched Schultz’s home and found a shotgun.  He was convicted of being a felon in possession of a firearm and sentenced this time to eighteen months in prison.

On appeal, Schultz argued that his telecoms offense, although a felony, did not expose him to liability under the felon-in-possession statute.  He relied on an exception in the law for prior convictions “pertaining to antitrust violations, unfair trade practices, restraints of trade, or similar offenses relating to the regulation of business practices.”  However, the Seventh Circuit rejected this argument and affirmed the conviction in United States v. Schultz (No. 09-1192) (Bauer, J.). 

The court seemed remarkably disinterested in exploring the underlying policy rationale for the business regulation exception.  The statute’s reference to “similar offenses” cries out for a theory to explain what the listed offenses (antitrust violations, unfair trade practices, and restraints of trade) have in common and why Congress deemed it appropriate to carve these offenses out of the general criminal prohibition on gun possession by a felon.  For instance, it strikes me that the listed offenses are similar in that all are nonviolent and are commonly perpetrated by otherwise legitimate business enterprises.  Thus, those who commit such offenses are not presumptively dangerous in ways that would warrant special restrictions on their right to own guns.  Based on this analysis, a court might determine whether a prior conviction counts as a “similar offense” by considering whether the offense was nonviolent and of the sort commonly perpetrated by otherwise legitimate business enterprises.  (Such an approach would, among other things, have the benefit of helping to ensure that some substantial state interest warrants the infringement on Second Amendment rights imposed by the felon-in-possession statute.)

Rather than attempting to discern a coherent congressional purpose behind the business regulation exception, the Seventh Circuit instead cobbled together a handful of holdings from other circuits to reach this test:

In order for the exclusion to apply under “regulation of business practices,” the government would have been required to prove, as an element of the predicate offense, that competition or consumers were affected; possible incidental affects are not relevant.

Because Schultz’s telecoms offense did not have as an element “that competitition or consumers were affected,” it qualified as a predicate offense. 

Interestingly, Schultz’s offense did, in fact, have as an element that his conduct affected interstate commerce.  But the court dismissed the significance of this element, observing simply that “many criminal statutes include such a jurisdictional nexus.” 

Absent is any discussion of why it makes sense to treat business regulatory offenses differently based on whether competition or consumers were affected.  Stealing cable is hardly laudable conduct, but why should the person who cheats the cable company get treated so much more harshly than the person who cheats real live consumers?

One: Obama said, “I’ve got to be honest, we’ve got to do a better job of moving bad teachers out of the classroom, once they’ve been given an opportunity to do it right.” His calls for recruiting higher-quality teachers and rewarding top teachers better didn’t get applause, but this line did. Secretary of Education Arne Duncan said in a telephone interview after the speech that this didn’t surprise him — it happens wherever the president speaks about education, he said. Raising the quality of teachers, in large part by doing more to identify quality teachers (and those who aren’t) is one of the highest, but most difficult, priorities for Obama and Duncan. And moving out the ones who really aren’t good at it is especially difficult, particularly given the defensiveness of teachers’ unions when such issues come up.

Two: His call for overhauling the way testing is done nationwide. 
He said he didn’t want to see more testing. “What we want to do is finally get testing right.” he said. This drew applause, and so did a line about getting test  results back to teachers in a short enough time to be useful. Wisconsin’s current testing regimen means students are taking the annual tests this month, but schools won’t get results for several months. This is hugely unpopular in the state, with educators arguing it leaves results almost useless to them. One of the highest priorities for a revamping of the state testing system is speeding up the cycle.

Three: His call for parents to do more to be part of the education process. ”Lifting up American education is not a task for government alone.  It will take parents getting more involved,” Obama said. (He then digressed into an anecdote about his daughter Malia struggling with tests in science, which also clearly struck a chord with the audience.) Duncan said the call for parents to do more also consistently generates warm reactions. A subject of huge importance but formidable complexity, parent involvement is getting more attention from educators across the U.S., including in Milwaukee. There appears to be a growing belief that schools can do more than simply throw up their hands when it comes to parents, and that strategies exist to lead many parents to become better allies of their children’s education.

At the time we tried the case (1996), black candidates for judicial office had not done well in Milwaukee County. That has changed, but not because the plaintiffs prevailed. Judge Gordon ruled in our favor and the Seventh Circuit affirmed. I’d like to think that events — subsequent successes by black candidates on a county wide basis — have validated his judgment, but I may not be the best one to make that judgment.

Judge Gordon wasn’t — on the bench — a warm person.

He was demanding. He expected good lawyering and strove to deliver good judging. He was one of the first judges in the district to impose time limits on trial lawyers. Although he occasionally sliced that loaf a bit too thin, he was right in recognizing that a command to brevity concentrates the mind.

Yet he wasn’t unreasonable. It was not about his calendar and how delay made him look. It was not about how much more he knew than the lawyers before him. It was about doing justice in a way that people had a right to expect and about which we involved in the process could be proud.

I think he made the lawyers before him better. I think he made himself better. I know that, in the few instances when I appeared before him, he made me better.

R.I.P.

Cross posted at Shark and Shepherd.

At trial, the government thus relied heavily on the testimony of the confidential informant, Anderson, who recounted a series of interactions with Cannon and Harris.  Perhaps most damaging to Harris was testimony that Cannon told Anderson that his cousin was coming to Milwaukee with a signficant amount of cocaine.  This testimony, of course, was hearsay: Cannon himself did not testify, and Harris had no ability to cross-examine him.  In order to overcome the hearsay problem, the government relied on the exception for statements by co-conspirators.  But this required the government to prove that Cannon and Harris were indeed co-conspirators, and the strongest evidence of that were the very statements whose admissibility was at issue.  The government’s argument thus had something of a boot-strapping character. 

Making the argument even more awkward on appeal, the jury convicted Harris of possession with intent to distribute, but actually acquitted him on a conspiracy charge. 

The Seventh Circuit nonetheless rejected Harris’s hearsay argument and affirmed his conviction in  United States v. Harris (No. 08-4026) (Flaum, J.).

In order for co-conspirator statements to be admissible, the government must prove the existence of the conpiracy by a preponderance of the evidence, not the higher beyond-a-reasonable-doubt standard that governs the guilt determination at trial.  Even so, the Seventh Circuit conceded that it was a “close question” whether the government satisfied its burden of proof:

[T]he government’s evidence of the conspiracy centers around the disputed hearsay statements themselves (and while Bourjaily permits this kind of bootstrapping, it is not the strongest evidence of a conspiracy) and Harris’s presence in the Excursion when the police officers discovered a kilogram of cocaine.  (p. 9)

The court ultimately found the evidence sufficient, relying on the facts that Harris drove the Excursion from Arkansas to Milwaukee, Harris was carrying “an exceedingly large quantity of cash,” and Anderson’s statements were corroborated in a number of other respects.

As an aside, it is interesting to see the court use the possession of a large amount of cash as a basis for inferring drug activity.  This may be perfectly appropriate in the circumstances, but I wonder to what extent drawing this sort of inference unfairly disadvantages people who live in communities that are underserved by banks or who otherwise lack access to the sorts of financial services that many of us take for granted.  As I discussed in an earlier post, this is not the first time this fall that the Seventh Circuit has been confronted with the question of when criminal activity can be inferred from carrying cash.  Notably absent from these cases is any empirical research on how commonly and in what sorts of circumstances large sums of cash are carried for lawful purposes.

However, a host of recent trends in criminal law are putting tremendous pressure on the old act-based approach and pointing to a new paradigm in which a defendant is punished based on his propensity to commit crime, with little or no regard to the severity of the particular act of which he has been convicted (if, indeed, there has been a conviction at all).  Some examples include the use of relevant conduct in the federal sentencing guidelines, three strikes laws and other sentence enhancements based on prior convictions, felon-in-possession laws, civil commitment of sex offenders, and preventive detention of terrorism suspects.  Such innovations are suggestive of a system in which we punish bad people, not bad acts.  To be sure, there is a wide gray area in which it is unclear whether we are punishing acts or people, but when (for instance) we impose what is effectively a life sentence for the theft of three golf clubs (as was done under the California three strikes law), there can be little doubt that the person, not the act, is the target of our condemnation.

Although sentencing law may most dramatically reveal the competition between the act and propensity paradigms, evidence law is also implicated – perhaps most importantly in Federal Rule of Evidence 404(b), which seems pretty clearly to embrace the act paradigm.  More specifically, the rule states that evidence of other bad acts is not admissible to show the character of a defendant or his propensity to commit crime.  Yet, to judge by recent Seventh Circuit cases, it seems that evidence of uncharged drug offenses  and prior drug convictions are routinely used against defendants in drug cases.  (See, for instance, my post here.) 

Last week, the court shed some light on the Rule 404(b) exceptions in United States v. Conner (No. 07-3527) (Kanne, J.). 

Conner was charged with distribution of crack cocaine in a single transaction on December 20, 2006.  Yet, during Conner’s trial, the government presented the jury with evidence regarding other drug transactions involving Conner before and after that date.  The trial court admitted the evidence as “intricately related” to the charged crime.  The Seventh Circuit, however, determined this to be an improper use of the “intricately related” doctrine.

The doctrine was characterized by the Seventh Circuit this way:

Evidence of other bad acts is admissible when those acts are so intricately related to the charged conduct that they help the jury form a more complete picture of the crime.  Under this “intrictately related” doctrine, courts have admitted evidence that is necessary to fill a conceptual or chronological void, or that is so blended or connected that it incidentally involves, explains the circumstances surrounding, or tends to prove any element of, the charged crime.

Because the other bad acts used against Conner involved some of the same cast of characters as the December 20 transaction, the government argued that the evidence established context and showed the relationship among the co-consprirators.  But Conner was not actually charged with conspiracy — only with the substantive crime of drug distribution.  As to the one transaction that was at issue in the case, the other bad acts did not actually serve to “complete the story.”  Thus, the Seventh Circuit characterized the government’s use of the evidence as a “circumvent[ion]” of Rule 404(b).

The court’s analysis suggests that the “intricately related” doctrine might have more play in a case in which conspiracy was actually charged.  On the other hand, the court seemed generally skeptical of the propriety of the doctrine, characterizing it as “unhelpfully vague” and quoting earlier decisions in which courts had expressed the concern that the doctrine “threatens to override Rule 404(b).”

But, what the Seventh Circuit gives with one hand (narrow interpretation of the intricately related doctrine), the court takes away with the other (expansive interpretation of the knowledge/intent/mistake exception to Rule 404(b)).  Conner lost because, in the court’s view, his other bad acts went to establish his state of mind.

Rule 404(b) does indeed permit the use of prior bad acts to prove knowledge, intent, or absence of mistake.  Thus, for instance, it would be proper to use a defendant’s earlier drug transactions to rebut his claim that he had no idea the white powder in his possession was cocaine.

However, Conner did not present a mistake defense or otherwise clearly contest knowledge or intent.  No matter, said the Seventh Circuit: “By pleading not guilty to the charge and denying any wrongdoing, Conner placed the burden on the government to prove each element of the crime [including intent] beyond a reasonable doubt.”  The court concluded, “Thus, we find that the evidence of Conner’s previous drug transactions was properly directed at an issue other than his propensity to commit the crime.”

The court seems to suggest that the usefulness of prior bad acts in establishing intent negates the possibility that the evidence is being used for propensity purposes.  But these purposes are not mutually exclusive.  Indeed, Conner’s own bad acts seem most clearly relevant to intent only insofar as Conner’s intent to commit other drug crimes supports an inference that he also intended to commit a drug crime on December 20, 2006 — in other words, that he has a propensity to commit drug crimes.

The analysis in Conner contains no clear limiting principle on the admissibility in drug dealing cases of evidence of other drug transactions.  The same criticism that Conner levels against the intricately related doctrine might be leveled against its own expansive interpretation of the knowledge/intent/mistake exception.

One might wonder whether the court is just going around in circles when it narrowly interprets the intricately related doctrine, but then expansively interprets the knowledge/intent/mistake exception.  The court makes clear, however, that it believes there is a real difference between admitting other bad acts under an intricately related theory and an intent theory: in the latter setting, the defendant is entitled to a limiting instruction highlighting for the jury that it should not use the bad acts for propensity purposes.  So, the court apparently does see itself as doing something to preserve the traditional act-orientation of criminal law by channeling other bad acts evidence into the knowledge/intent/mistake exception.  Whether jurors actually pay attention to limiting instructions is another question . . . .

David Ingram of the National Law Journal reports:

Ashcroft v. Iqbal, the 5-month-old U.S. Supreme Court decision that has become a thorn in the side of the plaintiffs bar, will get a Capitol Hill airing on Tuesday.

The House Judiciary Committee is scheduled to hold the first congressional hearing on the far-reaching May ruling, which raised the pleading standard for most civil complaints, making it more difficult to keep cases from being thrown out.

The hearing isn’t likely to be the last time Congress weighs in on the matter. Sen. Arlen Specter, D-Pa., has sponsored legislation to return to an earlier pleading standard, and he wields the gavel in a Senate Judiciary subcommittee.

Because so much is at stake for both trial lawyers and the business community, I would not be surprised if this is the first many salvos on what exactly must be proven to survive a Rule 12(b)(6) motion.  Additionally, because many of the lawsuits involved concern employment discrimination plaintiffs, this goes right to the heart of whether those complaining of discrimination, harassment, or retaliation in the workplace can get their case heard of the merits.

Without a mandatory minimum, a judge is free to impose a reasonable sentence under 18 U.S.C. § 3553(a), which tells judges to account for the nature of the crime; the history, characteristics, and rehabilitative needs of the defendant; the public interest in protection, deterrence, and punishment; the type of sentences available; the applicable Sentencing Guidelines (including pertinent policy statements); the need for uniformity in sentencing similar defendants for similar crimes; and restitution.  When a mandatory minimum must be imposed, however, most courts have held that only the defendant’s assistance may be considered when imposing a sentence below the minimum.

The Seventh Circuit has recently addressed this issue in the context of both 3553(e) and Rule 35.  See United States v. Johnson, No. 08-3541 (7^th Cir. September 4, 2009); United States v. Shelby, No. 08-2729 (7^th Cir. October 20, 2009). 

In both cases, the court ruled that only a defendant’s substantial assistance can be considered when determining the extent of the reduction, and that other factors normally relevant under § 3553(a) can be used only to reduce or leave in place that reduction, but never to increase it.  At least one other circuit has criticized this as an unfair “one way ratchet” in applying § 3553(a) factors to these cases.  See United States v. Grant, 567 F.3d 776 (6^th Cir. 2009) (which is also now in flux as on October 16 the Sixth Circuit vacated that decision and ordered a re-hearing en banc).

Does it make sense to limit sentencing judges’ discretion in these cases to considering only substantial assistance for the extent of the reduction?  For 3553(e) motions it may because the language of that statute states that a court has limited authority to sentence a defendant below a statutory minimum so as to reflect a defendant’s assistance.  Rule 35(b) contains no such language and states a defendant’s sentence can be reduced if the defendant provided substantial assistance, but does not otherwise limit the factors that can be considered.  The Shelby court found that despite this difference in language, it does not make sense to treat Rule 35(b) motions differently from those filed under 3553(e), and did so largely on various policy grounds.

Judge Terrance Evans wrote an interesting dissent in Shelby.  He wrote that United States v. Booker, 543 U.S. 220 (2005), which held that the United States Sentencing Guidelines were no longer binding on sentencing courts, and Kimbrough v. United States, 128 S.Ct. 558 (2007), which held that judges can legally disagree with the disparity between how crack and powder cocaine are treated under the guidelines, represented a “sea change” in federal sentencing law.  He criticized the “one-way ratchet” approach, stating, “If it’s kosher to rely on the § 3553(a) factors in giving only 50 percent of a sentence reduction sought by the government in a Rule 35 resentencing, why can’t those factors also be considered in giving the defendant more of a reduction?”  He fears that judges will now just “fudge” these hearings when they want to grant reductions larger than what may be deserved based solely upon the defendant’s assistance by exaggerating the assistance and disingenuously cloaking their reasoning in factors related only to assistance.

Evans also criticized the government for bringing the appeal, saying, “I would hope it has much better things to do.  Without an appeal, Shelby’s sentence would have passed under the radar screen without notice,” and further noting, “After all, it’s not like we’re running out of people behind bars.”  He cited a Pew Charitable Trust study that found America’s prison population has increased by 700 percent since 1970, and that America now incarcerates more people than Russia, South Africa, Mexico, Iran, India, Australia, Brazil, and Canada combined — at an average cost of $22,650 per year per inmate.

Does it make sense to base federal sentencing jurisprudence on the prison population?  Or on minor differences in wording between statutory provisions that ostensibly accomplish the same thing (i.e., reducing sentences for cooperation, with the only difference that one governs cooperation given before sentencing and one given after sentencing)?  Should we base it on individual judges’ discretion and wisdom, the very thing the Sentencing Guidelines were supposed to limit when they were enacted in the mid-1980’s? 

The uncertainty in federal sentencing is representative of the uncertainty inherent in the criminal justice system as a whole.  I remember back to my first-year criminal law class taught by Professor O’Meara (with a generous recent refresher discussion via email), where he talked about criminal justice as an area of law “without an effective theory.”  He borrowed this term from Columbia University Professor George Fletcher, and it refers to the observation that the criminal justice field does not seem to have an overarching goal or objective to address the problem of criminal conduct in our society.  Are we trying to primarily deter crime?  Achieve retribution and punish the criminal?  Incapacitate them (commonly referred to as “warehousing” them in prison)?  Do we want to rehabilitate them and have them (hopefully) return to society as productive citizens?

The criminal justice system seems to try to address all of these concerns without really accomplishing any of them.  The long federal mandatory minimum sentences for drug crimes have been in effect for over twenty-five years without much decline in drug dealing.  Almost none of my federal clients (many of whom are no strangers to the state criminal justice system) have any concept that ten-, fifteen-, and twenty-year mandatory minimum sentences are common in federal court until after they are indicted.  Punishment doesn’t seem to work well either because many criminal defendants reoffend, which also indicates they have not been rehabilitated.  Perhaps the goal the federal system accomplishes best is warehousing criminals, keeping them out of the community and stopping them from committing crimes for at least as long as they are in prison. 

Ultimately, the criminal justice system may be incapable of having an overriding theory because it is a purely reactive system: it operates only after a crime is committed, a victim is identified (whether it is an individual or the community), and a defendant is charged with a crime.  I’ve often thought that the only real way to address crime would be to go after its root cause, whatever it may be: poverty, lack of education, lack of family support, mental illness, drug-addiction, etc.  The problem is that the cause of crime is as varied as the individual committing it.  Until this can be truly addressed, federal sentencing law (as an example), and the criminal justice system as a whole, will continue to struggle with finding an effective theory of addressing crime.

By the statute’s literal terms, there can be no doubt that the prosecutor in United States v. Williams (No. 09-1924) failed to comply.  In the § 851 notice he served on Williams, the prosecutor identified only one prior conviction (not the requisite two) and then merely stated, “Further information concerning the defendant’s criminal history can be obtained from the United States Probation Office and specifically the Pretrial Services Report in this matter . . . .”  The Pretrial Services Report, which listed a second drug conviction, was not actually served on the defendant until after trial.  Indeed, it appears that the prosecutor himself had not even received and read the Report before his attempt to incorporate it by reference into the § 851 notice.  This was very sloppy work, and the Seventh Circuit righly chastised both the individual prosecutor and his office (the Northern District of Indiana), which lacked any protocol on how to make § 851 notices.  But sloppiness, even inexcusable sloppiness, is not the same thing as reversible error, and the court (per Judge Posner) affirmed Williams’ life sentence. 

Relying on prior cases, the court characterized the legal standard this way: “[A]s long as the defendant has actual notice of the intended use of a prior conviction to enhance his sentence, the statute has been substantially complied with and that is good enough.”  And Williams could not prevail on this “substantial compliance” test:

[T]he notice says that the government would rely on all “applicable” convictions in the pretrial services report, and it was apparent that the second felony drug conviction was “applicable,” that is, a basis for enhancement.  It was the only other felony drug conviction in the list of 19 dispositions [contained in the report]; . . . a lawyer reading the list would notice that in about fifteen seconds; and if the defendant’s lawyer had had any doubt about which conviction the prosecutor was planning to rely on for an enhancement he could have sought clarification from the prosecutor, and he didn’t — doubtless because it was clear.

Although Williams lost on his § 851 claim, the court made clear that it was not adopting a rule that any attempt at notice would always be sufficient:

We can imagine a notice and a list of convictions that were so confusing that the defendant and his lawyer could not be expected to pick out the one or ones that the government might try to use to enhance the defendant’s sentence. . . .

The government takes a risk by sloppy compliance . . . : the risk that either the court will hold that the government failed to provide the defendant with adequate notice or that the defendant will have a claim that by failing to interpret a confusing notice correctly his lawyer rendered ineffective assistance of counsel.

Interestingly, the Eleventh Circuit seems to be taking a very different view of § 851 compliance.  For instance, United States v. Bowden, No. 08-11935, 2009 WL 32755 (11th Cir. Jan. 7, 2009), apparently employs a strict compliance standard and holds that a failure to meet the standard deprives the sentencing court of jurisdiction to impose the mandatory life sentence.  Williams reports that the Solicitor General recently filed a petition for certiorari in Bowden, so the § 851 issue may be in the news again soon.

Although Arthur is frequently seen as Millard Fillmore primary competition for the title of “Most Obscure President in U.S. History,” the circumstances of his birth have raised questions eeriely similar to those asked about President Barack Obama by the birthers. 

Before 1880, Chester Arthur was a minor New York City politician who was a protégé of Sen. Roscoe Conkling of the Empire State.  Although he was a prominent lawyer, he had never run for, let alone held, elective office at any level.  Nevertheless, at the 1880 Republican Presidential Convention in Chicago, he was added to the Republican national ticket as the running mate of presidential candidate James Garfield.  Arthur was selected to balance the slate geographically — Garfield was from Ohio, part of the Midwest in an era when regions mattered — and to placate Sen. Conkling, a presidential aspirant himself and the leader of the Stalwart faction of the Republican Party.

In 1871, President Grant, with Conkling’s blessings, had appointed Arthur to the lucrative position as Collector of the Port of New York.  However, seven years later, he had been removed from that position by President Rutherford B. Hayes, as part of a presidential effort to crack down on the spoils system.  Although there was no evidence of real corruption at the custom house while Arthur was Collector, it was also clear that Arthur had no objections to padding the Collector’s payroll with loyal Republicans. Once elected, Arthur remained loyal to Conkling and the spoils system, and he and Garfield clashed repeatedly on questions of federal appointments, which led Garfield to ban Arthur from the White House.

However, on July 2, 1881, Garfield was assassinated by Charles Guiteau, a deranged supporter of Conkling, who, after shooting the president, shouted, “I am a Stalwart of the Stalwarts . . . Arthur is president now!”  Guiteau’s two shots actually did not prove to be fatal, and Garfield lived until September 19, when he was finally done in by a combination of infection and poor medical care. 

Although he was a product of, and, at least initially, a supporter of the spoils system, as president Arthur actually turned out to be fairly progressive and a strong supporter of civil service reform.  In 1883, he signed the Pendleton Act, which established the first Civil Service Commission.  Although he sought his party’s presidential nomination for 1885, he was not renominated by the Republican Party.  Even so, he left office widely respected by members of both parties.  Even Mark Twain begrudgingly acknowledged that “it would be hard indeed to better President Arthur’s administration.”

Questions of Arthur’s eligibility for the nation’s highest office surfaced during the 1880 campaign.  Arthur was the son of an Irishman who emigrated first to Canada and the then to the United States, and who finally became a naturalized United States citizen in 1843, fifteen years after his son Arthur’s birth in 1829.  Arthur’s mother was a United States citizen born in Vermont but whose family emigrated to Canada where she met and married her husband.  By the time of Arthur’s birth, his parents had moved back to Vermont. 

The controversy over Arthur’s citizenship status centers around the place of Arthur’s actual birth.  By one account he was born in his family’s home in Franklin County, Vermont.  If this was true, then he was clearly a natural born citizen.  On the other hand, the competing account has it that he was born during his pregnant mother’s visit to her family’s home in Canada. 

If the latter story is true, then Arthur was technically foreign-born, and in 1829, citizenship in such cases passed to the child only if the father was a United States citizen, and, of course, at this point Arthur’s father was still a citizen of the British Empire.

The principal advocate of the “born in Canada” theory was Arthur’s fellow New York lawyer Arthur P. Hinman who was hired in 1880 by the Democratic Party to investigate Arthur’s ancestry.  Hinman initially undermined his owned credibility by embracing an argument that Arthur was himself born in Ireland and didn’t come to the United States until he was fourteen years old.  That story was patently false and easily disproven. 

However, Hinman later discovered acquaintances of the Arthur family in Canada who told him the story of Arthur’s accidental Canadian birth.  Convinced that he now had proof of Arthur’s foreign citizenship, he published his findings in 1884 in a short book entitled How a Subject of the British Empire Became President of the United States.  Hinman’s book appeared near the end of Arthur’s presidency, and no official action was ever taken on the basic of his alleged evidence.

Arthur himself always insisted that he was born in Vermont, but he may not have known the place of his birth. By the time he was six years old, his family had left Vermont for New York, and he never lived in the Green Mountain State again.  It is possible that his parents considered the circumstances of his Canadian birth to be personally embarrassing and never shared the details of the story with him.

An investigation by the Boston Globe earlier this year — no doubt inspired by the Birther controversy — confirmed that there are no official records regarding Arthur’s birth in either Vermont or in Canada.  See Boston Globe, “Chester Arthur Rumor Still Lingers in Vermont,” August 17, 2009.

We will probably never know if Arthur was really eligible to be president of the United States in 1881.

This article on the Fully Informed Jury Association website gives an example from America’s colonial days.  In 1734, a printer named John Peter Zenger was arrested for committing libel against His Majesty’s government by publishing articles strongly critical of it.  When brought to trial on the charges, he admitted what he had done, but argued he had an affirmative defense that what he printed was the truth and therefore that he should not be convicted.  The judge instructed the jury that truth was no justification for libel, and that only the fact of the publications need be proved.  Despite the judge’s instructions and Zenger’s confession, the jury acquitted Zenger.  Clearly, the members of that jury opposed the Crown by engaging in nullification of the law before them.  This opposition would eventually come to full fruition during the American Revolution.

The right for jurors to judge the law and not just the facts survived into American common law. 

Chief Justice John Jay wrote in Georgia v. Brailsford, 3 U.S. (Dall) 1 (1794):

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.

Modern courts have also recognized this right.  The U.S. Court of Appeals for the District of Columbia has stated as recently as 1972 that there exists “an unreviewable and unreversible power in the jury, to acquit in disregard of the instructions on the law given by the trial judge…”  See United States v. Dougherty, 473 F.2d 1113, 1132 (D.C. Cir. 1972) (this case also includes an excellent discussion of the history and evolution of the idea of jury nullification in America).  Despite recognizing and acknowledging the jury’s innate power to nullify, the Dougherty Court also articulated virtually every modern courts’ holding that such power “does not establish as an imperative that the jury must be informed by the judge of that power.”  Indeed, most courts refuse to let any arguments be made to the jury about this “innate” right and power.

So why should juries be informed of their right to nullify the laws that are put before them?  Consider the defendant in Morissette v. United States, 342 U.S. 246 (1952) [discussed in an article by Harvey Silverglate, “The Decline and Fall of Mens Rea," in the September/October 2009 issue of The Champion, the magazine of NACDL (the National Association of Criminal Defense Lawyers)].  Joseph Morrissette was an Army veteran who worked as a fruit stand operator in the summer and as a truck driver and scrap iron collector in the winter.  Once while he was out hunting in a desolate field in Michigan, he came across from what all appearances were empty bomb casings.  Believing them to be abandoned property, he took some of them and sold them as scrap metal for $84.  The land he took the casings from was actually Oscoda Air Base, which the U.S. Air Force had used for dropping simulated bombs at ground targets.  Morrissette was indicted in federal court for “unlawfully, willfully, and knowingly” stealing and converting property of the United States government.  When he challenged his case at trial, the judge would not let him argue that he believed the property was abandoned, nor that the government failed to take steps such as posting signs to warn people not to trespass or take any property.

Morrissette was not as lucky as Zenger to have a jury that would nullify the law in question when it defied common notions of fairness and justice.  The judge in Morrissette’s case instructed the jury that the only issues for them to decide were limited to the elements of the crime: was the property on government land, and did Morrissette knowingly move the property and convert it?  The judge did not deem it relevant that Morrissette may not have known that it was government land or property that was involved in the first place.  Luckily for Morrissette, the United States Supreme Court saw fit to review the case, and reversed in his favor, finding that crimes have historically required “a culpable state of mind.”  Put simply, to convict someone of a crime, there must be “an evil-meaning mind with an evil-doing hand,” or as first-year law students learn, both a mens rea and actus reus.

Most relevant to this discussion, though, was the Court’s assertion that had the jury been allowed to consider Morrissette’s state of mind “they might have concluded that the heaps of spent casings left in the hinterland to rust away presented an appearance of unwanted and abandoned junk” and therefore might “have refused to brand Morrissette as a thief” (emphasis in quote is mine).  What the Court is implicitly recognizing with this statement is jury nullification.  The Court seems to hint that were the jury allowed to be judges of the law and not just the facts, perhaps they would have found, pursuant to their common-sense and judgment, that even though Morrissette violated the letter of the law, he should not be branded a criminal.  If the jury considered not only the factual circumstances of the crime, but also the legal circumstances, such as how the casings appeared, what explanation Morrissette offered for taking them, or whether the law put him on fair notice, perhaps a more just and robust verdict would have been rendered.  When juries, such as the one in Morrissette, are constrained to mechanically apply the facts of a case as they see them to the elements of the crime as given to them by the judge with no further critical inquiry, justice suffers.

 So why are courts afraid to let juries judge both law and fact and exercise nullification in their sound discretion?  I believe that it may be due in part to the desire to protect and extend the rampant proliferation of criminal laws and regulations in recent years, many of which do not require any specific intent on the part of the accused, but rather are “status” crimes.  For example, consider the variety of gun crimes that the U.S. Attorney’s Office has the power to prosecute. A person convicted of any felony crime in the United States is forever barred from possessing a firearm (felon in possession of a firearm). This is the classic status crime and the jury is asked to answer essentially two questions: 1) is the defendant a felon? and 2) did he or she possess a gun?  In other words, the mens rea applies only to the knowledge of the firearm, not to the knowledge of being a felon.  Not only does the rampant proliferation of criminal laws exist, but so does the rampant proliferation of criminal prosecutions.  With the government having been alleviated of the burden of having to prove one’s knowledge as to their “status,” the government can bring these prosecutions and secure convictions with relative ease.

 Consider the very real example of the young man charged with being an illegal alien in possession of a firearm.  If he is brought here at a young age and raised by his parents to believe that he is a United States citizen, this man could be subjected to federal prosecution for exercising what he would believe to be his Second Amendment right. Again, the question for the jury becomes 1) is he an alien in the United States illegally? and 2) did he possess a gun?  In at least one case in the Eastern District of Wisconsin, however, defense counsel persuaded the court that the government should have to prove that the person was aware of their “prohibited status” as an illegal alien (see Eastern District of Wisconsin Case No. 07-CR-16).  When confronted with the court’s ruling that it would have to prove that the person knew he was an illegal alien, the government elected to dismiss the charges on the eve of trial.

 In his article, Silverglate discusses a study by the Federalist Society reporting that by 2003 there were over 4,000 offenses listed in the United States Code (up from 3,000 in 1980).  And this figure does not include the countless federal regulations and administrative laws that are written by agencies such as the Securities and Exchange Commission that Congress delegates such powers to.  When law becomes this specialized and complex, I believe that reasonable people have a hard time deciding what should rightly be regarded as criminal conduct (like the vast majority of people would when considering murder, rape, child abuse, and large-scale drug dealing).  When conduct is deemed criminal that most reasonable people would not instinctively or intuitively view as such, then it becomes more and more difficult for judges and prosecutors to trust jurors to “do the right thing” and apply the law “correctly.”  It is for this very reason, the fact that the line between offenses that are mala in se (evil in itself) versus mala prohibita (wrong because it is prohibited) has become so fine and so subject to the whims and fancies of the individual prosecutor and judge that not only should jury nullification be recognized and acknowledged, but extolled and reaffirmed as a fundamental right that juries can exercise in their sound pursuit of justice.

Here’s the abstract:

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that the Federal Constitution provides a cause of action in damages for violations of the Fourth Amendment by individual federal officers. The so-called “Bivens” cause of action — initially extended to other constitutional provisions and then sharply curtailed over the past two decades — has been a subject of controversy among academics and judges since its creation. The most common criticism of Bivens — one that has been repeated in different venues for thirty years — is that the Court’s individual liability model, in which the offending officer is personally liable in damages, should be abandoned in favor of a governmental liability model akin to respondeat superior liability.

Commentators base their criticism of the individual liability model on two empirical assumptions: (1) Bivens suits are almost never successful; and (2) the defense of qualified immunity, available only to individuals, is a nearly insuperable barrier to plaintiffs’ prevailing in Bivens claims. On this account, a move to the governmental liability model will ensure adequate compensation and deterrence while removing a substantial barrier to plaintiffs’ success. These empirical claims about the general failure of Bivens suits and the explanation for that failure have never been tested. This Article corrects that oversight by offering the results of the first detailed empirical study of the determinants and outcomes of Bivens litigation. Based on data collected from cases filed in five district courts from 2001-2003, this Article concludes that the truths that scholars and judges have taken as a given are unsupported. Bivens claims succeed at a much higher rate than previously thought, especially compared to other civil rights litigation, and the defense of qualified immunity rarely plays a role in the outcome of Bivens litigation. These data call into question the given wisdom about the characteristics of Bivens litigation, and undermine the policy proposals that have occupied the field in Bivens scholarship.

So why do I bring this interesting article to the labor and employment law readers of this blog?  In an article I published last year, Whither the Pickering Rights of Federal Employees?, I pointed out that as a result of the Supreme Court’s 1983 decision in Bush v. Lucas, federal employees are not permitted to bring Bivens constitutional tort claims directly to federal court to vindicate their First Amendment rights to free speech under Pickering v. Bd. of Education. Instead, the Bush Court found that Congress had established an effective, alternative statutory scheme for vindication of such claims under the Civil Service Reform Act of 1978.

Because my empirical analysis of all First Amendment Pickering cases involving federal employees found that there had not been one successful employee claim of this type under that administrative scheme, I argued that Bush should be revisited and overturned, and a Bivens claim implied to vindicate the First Amendment interests of federal employees.

Some had argued that by going back to Bivens that these federal employees would face insurmountable odds because of the difficulties associated with winning these claims. Reinert’s new study demonstrates, however, that federal employees given a Bivens claim will likely find a more meaningful remedy for their First Amendment claims in federal trial courts.

Now, I can only hope that more people will pay attention to this study and see its importance for federal employees’ constitutional rights in the workplace.

But now the court has significantly limited the significance of Head in United States v. Anderson (No. 09-1958). 

For conditions of supervised release, 18 U.S.C. § 3583 (in its pre-2008 form) authorized a sentencing court to select just about any of the permissible conditions of probation (except assignment to a halfway house) and “any other condition it considers to be appropriate.”  In Anderson, the Seventh Circuit (per Judge Wood) held that this latter language, the “catch-all provision,” permits assignment to a halfway house.  In Head, the court had rejected this reading of the catch-all provision, reasoning that the inclusion of the halfway-house condition in the probation statute and the lack of specific authorization for the condition in the supervised release statute decided the question; a general catch-all provision could not overcome the negative implication created by the statute’s failure to authorize the condition expressly. 

Anderson downplayed this aspect of Head:

Head indicated in a footnote that the catch-all provision did not recapture the power to impose the halfway-house condition . . . . This theory, however, had not been pressed by the Government . . . .

In effect, Anderson seems to treat Head’s analysis of the catch-all provision as mere dicta and adopts a quite different interpretation: the “any other condition” language means what it says, “confer[ring] broad discretion on the district courts to fashion appropriate conditions of release that compl[y] with the broad goals of sentencing.”  Thus, it turns out (per Anderson) that Head only held that the halfway-house condition was not expressly authorized by the supervised-release statute; Head did not really decide whether the condition was prohibited.  Anderson now tells us that the condition is not prohibited.

Anderson’s interpretation of Head strikes me as rather strained.  But the Anderson panel circulated its opinion to the full court, and not one judge voted to hear the case en banc.  It seems odd that the court has so thoroughly undermined such a recent decision as Head, which is only nine months old, without a single voice raised in protest.  I suppose this is a rather arcane aspect of sentencing law, and perhaps no one really cares.  Or perhaps something in the new cases convinced the judges that Head had sacrificed too much by way of sound corrections policy in the name of textualist purity.  Perhaps the overwhelming weight of contrary precedent in the other circuits also contributed to the judges’ discomfort with Head.

Professor Blinka started the lunch discussion with Arizona v. Gant, a 5-to-4 decision written by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg (an odd confederation to say the least).  In Gant, the Court limited the scope of “search incident to arrest.”  The Court held that while police can conduct a warrantless vehicle search “incident to an arrest,” police can only search without a warrant and without consent if the arrestee is within reaching distance of the vehicle or if the officers have reasonable belief that “evidence of the offense of arrest might be found in the vehicle.” Arizona v. Gant 556 U. S. ____, 2 (2009).

After the discussion of the case, Professor Blinka suggested that one ramification of Gant is that law enforcement will likely put more emphasis on gaining consent to search vehicles, since arrest will no longer yield such access. Professor Blinka also left the lunch group with one question: why did the Court decide that it was appropriate to narrow the “search incident to arrest” rule in 2009, especially since the broader search rule had been in effect for nearly thirty years?

Professor McChrystal addressed the Court’s decision in Safford Unified School District v. Redding, 557 U.S. ___ (2009), another Fourth Amendment case. Unlike Gant, which was based on a police search, this case addressed the ability of public school administrators to strip search a minor student for contraband. In reaching their decision that the school administrator’s strip-search violated the student’s Fourth Amendment protection, the eight-member majority found that the intrusive nature of the search did not adequately correspond with a “substantial chance” of finding contraband in her underwear.

The 8-to-1 decision in Redding left Justice Thomas alone in dissent. In his dissenting opinion, Justice Thomas argued that the doctrine of in loco parentis (literally meaning “in place of the parent,” allows a third party to act with same authority that a parent would have) should be applied to allow school administrators to search a student’s person without any Fourth Amendment concerns whatsoever. Under this approach, not only would a strip search be constitutional, but so would a more drastic search of a student’s body cavities.

In Professor McChrystal’s closing remarks, he cautioned future practitioners about a broader issue of privacy— that in an age of Google searches, clients might want to limit their names from public record.  A Google search for the plaintiff in Redding results in nearly four million hits. And while Ms. Redding’s ordeal at school occurred six years ago this month, her name will always be attached to the school’s invasion of her privacy. However, had her lawyer petitioned the court for a pseudonym for the minor plaintiff, something that most courts would be likely to grant under the circumstances, she might have maintained more of the privacy that she fought so hard to protect.

The last case, Crawford v. Metropolitan Government of Nashville, discussed by Professor Secunda, reviewed the anti-retaliation provision of Title VII. This provision protects employees suffering from adverse employment actions (such as a demotion, change in pay, or termination) when the employee “participates” or “opposes” an unlawful employment practice. At the heart of the matter in Crawford was what type of employee conduct constitutes “opposition” to an unlawful employment practice. The Court, reversing the Sixth Circuit Court of Appeals, held that reporting sexual harassment was not needed for protection under the “opposition” prong of the anti-retaliation provision. Furthermore, applying an ordinary definition of “opposition” the Court held that the “opposition” prong of Title VII protected an employee’s cooperation with an internal investigation of sexual harassment when an employee gave a “disapproving account” of a supervisor’s conduct.

Professor Secunda noted that while the unanimous decision is good for employees that seek retaliation protection, the Court may have better helped such workers by addressing employee protection under the more frequently used “participation” clause.

MU-ACS sincerely appreciates the faculty members and students who gave their time for the event. All students are welcome to join MU-ACS events.

Some people dislike jazz.  To them, the melody of the song gets lost in a blizzard of noise.  Jazz aficionados hear something different.  They are listening to what the musicians do in the spaces in between the notes of the melody.

The United States Constitution creates a positive space for government.  The federal government is delegated specific powers.  The governments of the states retain those powers not delegated to the federal government or otherwise retained by the people.

However, the United States Constitution also creates negative space for government.  What happens when a changing world, changing social values, or new technologies cause the public to demand an expansion of government into spaces that fall in neither the delegated powers of the federal government nor the traditional realm of the states?  Typically in our nation’s history, this has occurred in response to a crisis that implicates a national economic interest or a national security interest, making reliance on the individual state governments for solutions inadequate.  Examples would include the Great Depression and the response to the September 11 attacks.  In these situations, the federal government rushes in to fill the negative space, despite the fact that a strict reading of the Constitution does not provide for the federal authority to do so.

In the controversy surrounding the chartering of the Bank of the United States, shortly after the Constitution was ratified, two of the Framers grappled with this dilemma.  The fact that they came to different conclusions continues to influence the debate over federal power today.   James Madison and Alexander Hamilton agreed that the delegated powers of the federal government should be interpreted broadly, but they differed in their view of whether the Constitution left any negative space for the federal government to expand beyond those powers expressly delegated to it.

Madison felt that the outer limits of federal government power were set by the understanding of the people at the time that the Constitution was ratified.  Those boundaries could not be expanded short of a constitutional amendment.  In contrast, Hamilton seems to have believed that these limits could be loosened or lifted through precipitous action by the federal government, explained and defended to the public, so long as the public demonstrated their approval of the new boundaries.  Hamilton’s conception of sovereignty allowed for the possibility that later generations of Americans might approve of a stronger national government than was originally envisioned, if they were persuaded that the extra authority was merited.

 Hamilton’s proposal to charter a national bank, and his adoption of the principle that even a federal government limited in its ends could employ tremendous discretion to achieve those ends, flowed naturally from his view that the Constitution left the federal government room to grow when acting in response to a truly national need.  Madison believed that the proposed bank was inconsistent with the original assumptions concerning the proper ends for which the newly created federal power would be used.  Madison thought it had been settled at the time of ratification that the federal government lacked the power to charter a national bank.  As a result, Madison came to align himself with the Ant-Federalists in opposition to the bank, and he would eventually articulate the States Rights political philosophy that continues to resonate with many Americans. 

In our constitutional system, the Supreme Court serves as the ultimate arbiter of whether an attempt by the federal government to expand into negative space is permitted.  In his recent book, Packing the Court, historian James MacGregor Burns paints a picture of a Supreme Court that has exercised this role in a reactionary fashion.  That the Court is able to play this role at all is solely the result of the bedrock doctrine of judicial review laid down in Marbury v. Madison.  Burns’ thesis is that this seminal case was wrongly decided.

Burns’ view of American history is sympathetic towards presidents who engage in the type of “transforming leadership” necessary to adapt the nation to new challenges and changing environments.  He criticizes the Supreme Court over the course of our nation’s history for often frustrating presidential attempts at transformative leadership through the illegitimate (in his eyes) vehicle of judicial review.  His book is an indictment of a Supreme Court that serves to further reactionary elements in our society rather than to respond to popular movements for reform (with the exception of the Warren Court, which Burns praises – inconsistently – for exercising judicial review in order to expand the scope of individual rights).

Although Burns views history through the traditional dichotomy of liberalism versus conservatism, we should recognize that the search for negative space is not an ideological issue.  The doctrine of the unitary executive, espoused by many of the leading lawyers in the Bush Administration as the justification for broad executive branch power after September 11, and still embraced by many leading conservative thinkers, is nothing if not a declaration that the Constitution leaves a great deal of negative space for the President to operate in in matters of national security.  In its cases dealing with the Guantanamo Bay detainees thus far, the Supreme Court has not foreclosed the possible existence of an expansive executive power so much as insisted that any unprecedented movement of executive power into spaces left open by the Constitution must come with the assent of congress.

Burns is correct that the Supreme Court has often used judicial review to deny attempts by the federal government to expand beyond the bounds that Madison thought were settled in 1789.  Early in the nineteenth century, Chief Justice John Marshall interpreted the federal sphere quite broadly.  However, later in the Court’s history the justices would rely upon doctrines of federalism to promote a political philosophy where state governments received first claim on the ability to expand into any negative spaces.  As our national economy grew larger and more intertwined, and as the role of the United States as a global superpower required a stronger federal hand in dealing with foreign nations, it became more difficult to argue that state governments could successfully occupy all of these open spaces.  The Great Depression, and two Wolrd Wars, forced the Court to recognize this reality.

In more recent years, the Supreme Court has relied upon theories of interpretation, most notably textualism, as the vehicle for denying the federal government the ability to expand its role beyond delegated bounds.  These theories have the benefit of applying without regard to whether state governments are capable of meeting the same demands that the federal government is seeking to satisfy, and therefore these theories have been more successful than federalism as a means of policing the expansion of the federal sphere in the modern economy.  However, the subjective way in which interpretive theory is inevitably applied has become apparent to all observers of the Court, with the consequence that the Supreme Court’s use of textualism has only served to increase public awareness of the Court’s growing institutional power and also of the ideology of its members.  Persons across the ideological spectrum share a discomfort with these developments.

There are early hints that persons seeking to deny the federal government the negative space in which to grow will next turn to moral philosophy, such as the theory of subsidiarity in the Catholic faith, as a vehicle for policing the federal government.  Whether or not these early efforts will mature into a coherent mode of constitutional interpretation remains to be seen.  If this effort fails, there will doubtless be other arguments advanced by those who seek to deny the existence of negative space in our Constitution.

What is undeniable is that the Constitution of 1789 was not written for a United States that had a complex and integrated national economy and that was a global superpower.  As the President and the Congress seek to navigate in such a world (and indeed, as the general public demands that they do so), some people will see only chaos and a lack of legitimate authority.  Other people will see an attempt to create something out of open spaces.

Furthermore, his call for college football to institute a playoff system to determine the champion of what most people still call Division 1A football has fared no better.  Although such a change has admittedly not been a top priority of Obama’s administration, he did quite openly throw his support with those opposing the current BCS championship system (based on polls and giving priority to the teams that make up the six so-called BCS conferences)  both during the campaign and after he was elected. 

Support for Obama’s position seemed to congeal at the end of the 2008-09 college season when the BCS formula left undefeated University of Utah out of the BCS championship game and undefeated Boise State and Texas Christian University (which would finish the season ranked #7 in the country in the AP poll) out of BCS bowl games altogether.

On January 9, 2009, eleven days before Obama’s inauguration and the day after one-loss Florida defeated one-loss Oklahoma for the BCS championship, Rep. Joe Barton of Texas, the ranking Republican on the House Energy and Commerce Committee, introduced a bill that would prohibit as a “deceptive practice” the promotion of a postseason NCAA Division I football game as a national championship game unless it was the final game of a traditional playoff.   Barton represented a district that abutted Fort Worth, the home of TCU, and his bill was co-sponsored by fellow Texas Republican Michael T. McCaul and the peripatetic former Black Panther Bobby Rush (D-IL), whose constituents include Barack and Michelle Obama.  

Six days later, Democrat Neil Abercrombie of Obama’s native Hawaii proposed a somewhat less dramatic approach when he introduced a nonbinding resolution calling for a playoff system and for a Justice Department investigation into the legality of the BCS system under the federal antitrust laws.  Abercrombie’s resolution was endorsed by Lynn Westmoreland (R-GA), Jim Matheson (D-UT), and Michael K. Simpson (R-ID), all of whom represented districts lacking teams in BCS conferences.  The following day, a third bill was introduced, this time by Republican Gary Miller of California.  Rather than label the BCS system a fraud (as Barton’s bill would do) Miller’s proposal denied all federal funds to schools in the Division I Football Bowl Subdivision unless the championship game resulted from a playoff system.   

However, the movement to force the NCAA to adopt a playoff system quickly ran out of steam once the new president was inaugurated.  Although  Barton and Miller endorsed each other’s bills and Abercrombie’s resolution, and Abercrombie signed on as a co-sponsor of Miller’s bill (but not Barton’s), only two other congressmen, Ken Calvert (R-CA) and  John Carter (R-TX), subsequently endorsed any of the above legislation.  Barton and Miller’s bills both died in committee in January while Abercrombie’s resolution was apparently tabled in March.  Hearings conducted in May by the House Energy and Commerce Committee’s Commerce, Trade and Consumer Protection Subcommittee attracted almost no attention.

The idea that Congress might intervene on behalf of a playoff was briefly revived in July when Sen. Orrin Hatch of Utah, the ranking Republican on the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights held hearings on the legality of the BCS system.  Although Hatch’s hearings primarily focused on the possibility of the Justice Department prosecuting the NCAA under the federal antitrust laws, they appeared also to revive the idea of direct congressional intervention.  During the Hatch hearings, Congressman Barton, who had earlier denounced the BCS as a form of Communism, predicted that if the NCAA did not adopt a playoff system by the start of the next season, Congress would intervene and impose one itself. 

Well, the NCAA did nothing, and Congress followed suit.   The president, presumably, was busy with other matters. 

Given the reluctance of Congress to interfere with the sports industry, even after 50+ years of investigatory hearings, in matters of franchise relocation, expansion, pay television, and performance-enhancing drugs, it would have been shocking had it been moved to act in regard to what is clearly a matter of style rather than substance. 

But now that he has two strikes, the president should be careful before he takes another swing at the sports industry.

[Thanks to John Foust for bringing several misspellings in the original version of this post to our attention.  Eds.]