It Takes Two to Tango

Historically, courts have declined to impose aiding and abetting liability regarding crimes for which two parties are essential to commission.  As the Model Penal Code puts it, accomplice liability does not extend to conduct that is “inevitably incident” to the main offense; more colloquially, accomplice liability will not apply to crimes for which it “takes two to tango.”  Thus, a buyer of drugs for personal use does not aid or abet the dealer’s distribution; a woman who voluntarily accompanies a man across state lines for purposes of prostitution does not facilitate his violation of the Mann Act; the patron of a speakeasy does not aid and abet the illegal sale of alcohol.  And, as of today, a person who telephones a drug trafficker to order cocaine for personal use does not violate 21 U.S.C. § 843(b).

Section 843(b) offenses are commonly known as “phone counts.”  The statute makes it a felony, punishable by up to four years in prison, to knowingly or intentionally  use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under the Controlled Substances Act.  Some Circuits, including the Seventh, had held that a buyer’s use of the phone in purchasing drugs “facilitates” the seller’s (felony) drug distribution within the meaning of § 843(b).  Today, in Abuelhawa v. United States, the Supreme Court held that Congress, legislating in light of the common-law tradition discussed above, did not intend such a result.  Although the term “facilitate” could be subject to the broad construction urged by the government, the Court found that Congress likely intended the term “facilitate” to be construed similar to “aid and abet.”  The Court noted that Congress generally made simple drug possession a misdemeanor, and transforming misdemeanor possession into a felony simply because a phone was involved would skew “the congressional calibration of respective buyer-seller penalties.”

Phone counts are often used as a means of resolving cases involving greater charges, like conspiracy to distribute.  In those situations, even if the caller is primarily a user, he may intend at least some of the drugs for re-distribution, or he may be middling transactions for others.  But simply using the phone to make a misdemeanor drug purchase is (now) outside the scope of the statute.

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Correlation Between Number of Questions the Justices Ask and Losing Your United States Supreme Court Case

The New York Times has published a story about some studies showing a strong correlation between the number of questions the Supreme Court justices ask a particular litigant during oral argument and an increased likelihood that that side will lose.  In the words of the attorney who did some of the first work on this question while she was a still a law student,

“The bottom line, as simple as it sounds,” said the student, Sarah Levien Shullman, who is now a litigation associate at a law firm in Florida, “is that the party that gets the most questions is likely to lose.”

Shullman only studied ten cases, but, the article reports, Chief Justice Roberts confirmed the result in his own, larger study while he was a circuit court judge.  

A recent, much more thorough study, accepted for publication in the Washington University Journal of Law and Policy, seems to prove the correlation exists.  From the abstract,

This paper tests whether Supreme Court justices tip their hands at oral arguments. Specifically, we test whether, when justices ask more questions of one side, that side is more likely to lose their case. The findings support the theory; namely, when justices ask more questions of the petitioner’s attorney the Court is significantly less likely to reverse the lower court decision.

The NYT remarks that Chief Justice Roberts “sounded both fascinated and a little deflated by the results of his experiment. ‘The secret to successful advocacy,’ he said playfully, ‘is simply to get the court to ask your opponent more questions.'” 

The result seems obvious.  It is human nature, at least among lawyers, to want to interrupt and ask questions of someone you disagree with, especially if the person’s answers are not satisfactory.  In other words, the side that has a sound, convincing answer for every question has created a better argument.

Now, if only a study could show how to have a sound, convincing answer for every question in every argument.  That would be a real secret to successful advocacy.

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Does Justice Souter Make a Difference?

This is my final posting as the Faculty Blogger for the Month of May.  Thanks to everyone who has commented on my posts and a special thanks to my colleague Michael O’Hear.

As we await word on the nomination of Justice Souter’s replacement on the Supreme Court, many observers are wondering whether the change in personnel will make any difference in the Court’s jurisprudence.  The consensus seems to be that the direction of the Court will not change significantly.  Depending upon whom President Obama nominates, however, there is one area where Justice Souter’s replacement may make a difference.

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