“We Can Be Better Than That”

Law school is hard.  Being a lawyer is harder.  But that difficulties and responsibilities come with entering the legal profession is not something to bemoan or a cause to run away.  Nor should the difficulty of legal education and practice be sought purely as a means to financial rewards, especially since these rewards are becoming all the more elusive in today’s world.  It is an opportunity for intellectual development and experience, all lifetime benefits to embrace.

The difficulty starts from the moment we study for the LSAT.  In our first years, we are tasked with reading and processing and cogently articulating concepts gleaned (or pulled like teeth) from ancient cases about barrels falling out of windows, churches burning down, and smoke balls that supposedly cured every minor ailment under the sun.  Come second year, we may find ourselves toiling in the law review cite-check room as staffers or coming out of our shells as we practice oral argument for Appellate Writing & Advocacy, along with even more copious amounts of reading, this time on topics like criminal process, agency and corporate law, taxation, postmortem property transfers, and intellectual property.  Then you will get the taste of working as an attorney, whether in a summer associate position at a large firm or clerking for a mid-size or smaller firm, in which your legal studies for the first time become “real.”  When third year arrives, you will have the chance to take workshops on pretrial practice and contract drafting among others, and (you guessed it) more reading.  In sum, as Justice Stephen Breyer was right to tell his children, “[I]f you do your homework really well, . . . you can do homework the rest of your life!”

Once you begin practicing in the real world, you will have even more difficult homework, and the stakes are even higher. 

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Trying to Hire a Hit Man? Don’t Answer Your Cell Phone

A new Seventh Circuit decision underscores the jurisdictional breadth of the federal murder-for-hire statute, 18 U.S.C. § 1958(a). Although solicitation to commit murder would seem a prototypical state offense, it can be prosecuted federally if money was involved and a “facility of interstate commerce” was used. And it takes very little indeed to satisfy the latter element.

For instance, in the new Seventh Circuit case, United States v. Mandel (No. 09-4116), the defendant planned a hit on his business partner with one of his employees, who turned out to be a confidential informant. A jury convicted Mandel on six counts of violating § 1958(a). In four, the “use of a facility of interstate commerce” was a cell phone conversation with the c.i. (three of which were actually initiated by the c.i.). In the other two, the “use of a facility of interstate commerce” was driving around in a car with the c.i. while the hit was discussed.

In all of these counts, what triggers federal jurisdiction seems only incidental to the offense; it is not the use of a cell phone or a car that made the defendant’s conduct dangerous and his intentions blameworthy. Mandel would merit no less punishment if he had communicated with the c.i. by sign language or smoke signals, or if he had gotten around by roller-skating. It is this lack of a meaningful connection between the jurisdictional element and the wrongfulness of the defendant’s conduct that gives federal prosecution such an arbitrary character in so many cases. But, for better or worse, that is where we are in the modern world of Commerce Clause jurisprudence. (Note, though, the Supreme Court’s efforts to maintain some sort of principled limitations on federal criminal jurisdiction in its interesting decision last term in Fowler v. United States.)

Mandel contested the jurisdictional issues on appeal, but to no avail.

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Florida’s “Strict-Liability” Drug Law Found Unconstitutional

Are there any constitutional limits on the power of a legislature to restructure state-of-mind elements as affirmative defenses? The Supreme Court has suggested that such limits do exist, but has not clearly delineated what they are. However, an interesting habeas case now moving through the lower federal courts may provide a good opportunity to clarify this uncertain area of the law.

The case has emerged from a tug-of-war between the Florida legislature and the courts over the state’s basic drug-trafficking offense. Although the offense did not include any express state-of-mind element, the Florida Supreme Court held as a matter of statutory construction in 1996 that the state was required to prove knowledge of the illicit nature of the substance involved in the offense. The legislature responded in 2002 by amending the statute and clearly indicating that knowledge was not required; rather, the legislature specified, lack of knowledge must be proved by the defendant as an affirmative defense. (Apparently, only one other state, Washington, similarly dispenses with a state-of-mind element for drug trafficking.) Now, a federal district court has ruled on a habeas petition by a defendant convicted under the Florida statute, holding in Shelton v. Secretary, Department of Corrections (No. 6:07-cv-839-Orl-35-KRS) that the new version of the offense facially violates the Due Process Clause.

I’m sympathetic to the idea of constitutional limits on the legislature’s ability to create strict-liability crimes, but the court’s reasoning in Shelton strikes me as something less than compelling.

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