Public – Page 547 – Marquette University Law School Faculty Blog

October Conference to Consider the History, Legacy of America’s First Crime Commission

Post author:Michael M. O'Hear
Post published:July 11, 2012
Post category:Criminal Law & Process Public Speakers at Marquette

Along with my colleagues Dan Blinka, Dean Strang, and Gordon Hylton, I’ve been organizing a conference at Marquette Law School on the Wickersham Commission, America’s first national crime commission. Appointed by President Hoover (left) and including many legal luminaries of the day, the Wickersham Commission produced an extraordinary series of reports in 1931 that examined in great detail the causes of crime and the operation of the American criminal-justice system. Perhaps best remembered for the critical light it cast on extreme police interrogation tactics, the Commission’s work might also be thought of as the coming-of-age of American criminology, as a progenitor of the contemporary “evidence-based decision making” movement, and as a centerpiece of the first presidential effort to craft a comprehensive federal crime-control policy.

The conference will kick off at 4:30 on October 4 with a keynote address by one of my favorite authors on crime policy, Professor Frank Zimring of Berkeley. Registration information for the keynote is here.

The conference will continue with a series of panels beginning at 8:30 a.m. on October 5. Speakers will include distinguished historians, law professors, and criminologists. CLE credits will be applied for. Additional details and registration information are available here.

Best of the Blogs: Aftermath of the Supreme Court’s Ruling on the Affordable Care Act

Post author:Edward A. Fallone
Post published:July 10, 2012
Post category:Constitutional Interpretation Constitutional Law Health Care Judges & Judicial Process Political Processes & Rhetoric Public U.S. Supreme Court

The Supreme Court’s decision upholding the constitutionality of the Affordable Care Act has generated a great deal of “instant analysis” on the web. This post will survey some of the noteworthy commentary.

I have not read anything that has caused me to re-evaluate my initial reaction to the decision. I thought that neither Justice Robert’s Commerce Clause analysis nor his Taxing Power analysis was particularly compelling, yet I was struck by the manner in which the Chief Justice managed to construct a 5-4 majority that paralleled Marbury v. Madison insofar as the ruling chastized a sitting President with its rhetoric while simultaneously handing the President a major policy victory. Upon further reflection, I still believe that future Supreme Court justices will find it quite easy to evade the boundaries that the language of the NFIB v. Sebelius decision purports to place on federal government power. All it will take is a change in one vote for a future Court to designate the opinion’s Commerce Clause analysis as “dicta,” or else to find the requisite level of coercion lacking the next time that Congress’ deploys its Spending Power in a similar fashion. While the rhetoric of the opinion promises doctrinal limits on federal power, the actual holdings of the decision fail to deliver on that promise.

John Yoo has come to the same conclusion. In an op ed piece in the Wall Street Journal he considers the spin that some political conservatives have placed on the Court’s ruling — that it was a victory for the advocates of limited governent — and finds these assertions to be no more than a “hollow hope.” He rejects the comparison to Marbury v. Madison, and instead compares the opinion of Justice Roberts to the “switch in time” that led the Supreme Court to uphold New Deal Era legislation during the Franklin Roosevelt Administration. By frustrating the Supreme Court’s best chance since the 1930s to reverse what Yoo views as an anti-originalist acceptance of broad legislative power, Justice Roberts has let Professor Yoo down.

The Proper Procedure for Facebook Discovery, Part I

Post author:Bruce E. Boyden
Post published:July 10, 2012
Post category:Civil Procedure Computer Law Privacy Rights Public

An individual is involved in a civil lawsuit against someone — a tort suit, an employment discrimination suit, a civil rights suit — and the opposing party requests production of everything in his or her Facebook account during discovery. The individual refuses, or produces some material but not others, and the requesting party moves to compel. How should the court respond?

This situation is coming up increasingly frequently, and it appears to be confounding in many cases for everyone involved — judges, attorneys, and the parties themselves. Many individual litigants are no doubt surprised by such requests; not being familiar with the ordinary rules of discovery, they may not have realized that suing someone, or being sued, means that all relevant documents must be turned over — which might include every half-witted Facebook post or photograph pertaining to some issue germane to the lawsuit (such as, e.g., the plaintiff’s emotional well-being). Businesses have lived for years with the knowledge that a single wayward email from the CEO can sink a lawsuit; now individuals are experiencing the litigation effects when every decision or even fleeting thought is permanently recorded and archived. And destroying relevant material after the prospect of litigation becomes clear just makes matters worse.

But individual parties are not the only ones surprised by the interaction between civil discovery rules and social networking materials. Judges and attorneys often seem not to know exactly how to categorize the materials on a site like Facebook: is it all one relevant document? Multiple documents? How should the material be produced? Can the material be sought directly from the site via subpoena? Is the material shielded from discovery in any way? This confusion has led in some instances to court orders I’ve criticized as requiring overly broad production of social networking materials, with parties unnecessarily compelled to turn over entire accounts or even, in some cases, passwords to those accounts so opposing counsel can peruse them at will.

By and large most of those cases have been state cases, but federal courts are starting to issue opinions on social networking discovery as well. Over at Eric Goldman’s Technology & Marketing Law Blog, Venkat Balasubramani points to a recent decision from a magistrate judge in the District of Nevada, Thompson v. Autoliv ASP, Inc., No. 09-cv-01375, 2012 U.S. Dist. LEXIS 85143 (D. Nev. June 20, 2012). In Thompson, the judge ordered production of 5 years’ worth of Facebook and MySpace posts, photographs, and other materials to opposing counsel for its review. On a quick read Thompson might appear to fit into the category of overbroad decisions, but, despite an insufficient number of caveats in the opinion for my taste, I don’t believe it is.

I want to spend this post detailing exactly what’s wrong with an order compelling production of an entire social networking account, and why I think courts issuing such orders are going off the rails.