Long Day of Travel
I just returned to DC after a 9-hour flight back from Munich, where for the last two weeks I was teaching a 1-credit version of my computer crime law class as part of GW’s Munich Intellectual Property Law Summer Program. I hope to have something new up tonight, but I’m not entirely positive about that.
More on Banning Laptops, Blocking Wireless Access
Orly Lobel has more thoughts over at PrawfsBlawg on the question of banning laptops in law school classrooms.
We discussed this issue here a few months ago, so I’ll just add one relatively recent data point to the empirical picture. The Harvard Bloggership conference in April was held in the Ropes-Gray moot court room at the law school, and had wifi enabled. Lots of the professors had their laptops with them, and one or two professors used the wifi to liveblog the conference. But by the middle of the day-long conference, it seemed to me that a large chunk (around half) of the professors in the audience were online checking e-mail, reading blogs, and surfing around to see what was up in Boston that weekend. Most were paying partial attention to the symposium, but they had a lot more going on than just the symposium.
If I had to guess, I would guess that the most common resolution to this issue (at least over the next 10 or 20 years) will be disabling wireless in classrooms but allowing laptops. That’s not so easy to do these days, but then the folks who designed the networks weren’t making that option a priority. But my guess is that this will change.
CDT Launches “PolicyBeta” Blog
The Center for Democracy and Technology, one of the leading public interest organizations that covers electronic privacy and civil liberties issues, has started a new blog: PolicyBeta. The contributors are a top-notch group, and this blog looks like it will be very much worth reading. Check it out.
Latest Specter Bill on NSA Surveillance Programs
The text of the Specter bill to amend FISA to allow the NSA surveillance programs has been morphing over the last few days. I have posted the latest version here.
When District Court Judges Use “We”
I always find it a bit puzzling when district court judges — who decide cases themselves, without a panel of colleagues– refer to themselves as “we” in an opinion. I can understand the universal “we” in the context of an appellate panel; the “we” refers to the multiple judges in the majority. But who is the “we” in the context of a single-judge opinion? Is that supposed to be the judge and his judge friends? The judge and his law clerk? I suppose “we” sounds more oracular than just “I,” but it still seems odd to see it in an opinion by a single judge.
UPDATE: In the comment thread, some readers suggest that district court judges properly use “we” because their rulings are understood to be rulings of the entire Court as an institution. This is a possibility, but I’m not sure the argument works. First, individual judges who are members of the same Court can disagree on an issue, so one judge’s ruling isn’t necessarily the view of other judges. Second, I don’t think I have ever heard a single trial judge use “we” when making a ruling from the bench in open court. In my experience, at least, judges in court usually are comfortable with using “I” when making oral rulings; it’s the switch from oral to written decisions that seems to trigger the occasional switch from “I” to “we.”
I think it’s also worth noting that a lot of legal scholars try to avoid the first-person altogether on the ground that it seems less authoritative. So where you might write “In this article, I argue that the moon is made of green cheese,” some authors (and lots and lots of law review editors) will want to change that to “This article argues that the moon is made of green cheese.” I usually try to resist this, as I prefer my writing to be as direct and honest as possible. The truth is, my articles are not entities that make arguments on their own; it’s always me pulling the strings behind the scenes. So I would rather just say “I.” But I’m probably in the minority. Er, rather, the view stated in the preceding sentences is probably in the minority.
The Goals of Teaching Criminal Law
A series of very interesting posts at PrawfsBlawg, carried over to Concurring Opinions, is considering whether first-year law school courses in criminal law should focus on the Model Penal Code. I think the answer depends on what kind of class the professor wants to teach, which in turn depends on what the professor’s goals are in teaching the class. There’s no right answer to this – just different approaches – and I think the different approaches nicely explain the different views of teaching the MPC.
If you’ll allow me to paint with a very broad brush, it seems to me that there are four of five traditional types of criminal law professors. Each type brings its own set of interests to the class. For example, some crim law professors have a great deal of practical experience, and want to give students a feel for the real-world of criminal law practice that they experienced. Other criminal law professors see themselves as specialists in law and philosophy, and want to show students how legal doctrines follow from philosophical commitments and arguments. Some see themselves as legal reformers, and focus on the injustice of the legal system and the need for change. Some are interested in criminology, and want to focus on criminal law as a response to the social problem of criminal activity. Others teach the class as case study of how to learn about law, and focus more on the basic skills such as statutory interpretation and policy arguments. (To be clear, most profs are a mix of these types, but I think it’s helpful to see the different strands.)
Returning to the question of whether to teach the Model Penal Code, I think it depends largely on the “camp” to which a particular professor belongs. For example, I tend to teach criminal law as a basic skills course; the point is not so much to teach students the categories of homicide liability, or to master the works of a particular criminal law theorist, but rather to learn the basic tools of studying law (and in particular, statutory law). I take this approach for a few reasons, among them that I teach crim to students in their 1st semester of law school, and most students don’t go into criminal law. In that environment, I find that criminal law is ideal as a basic tools class because the facts of cases are usually very simple, which makes it easier to jump into the two key questions of the course: 1) generating policy arguments in favor of or against a given legal rule, and 2) understanding a statutory code and applying it to a set of facts.
For my purposes, then, the MPC is ideal. The MPC becomes a law student’s first statutory code, and learning the code teaches them how to master a complex statutory scheme. It’s a perfect beginner’s code because its so well thought out; the pieces fit together nicely, with very few loose ends.
Of course, if a professor comes from another camp, the MPC can come up short. Russell Covey’s initial post on why he doesn’t like the MPC provides a good illustration. If I’m reading his post correctly, his frustrations with the MPC seem to be that they draw attention away from criminology and the realities of criminal law practice. I think those are fair points, but they ultimately go to the broader question of goals for crim law professors more than intrinsic problems of the MPC as a statutory code.
The Bar Exam
A number of readers of this blog just graduated from law school this spring, and are sitting for the bar exam this week. Different states host the bar exam on different days; as best I can tell from googling around, some folks are mostly or entirely done as of today, and others start tomorrow. If you’re taking the bar and are just about (or entirely) done, congrats! And if you’re starting tomorrow, good luck!
Senator Specter’s Op-Ed
Senator Specter has an op-ed in the Washington Post in which he responds to critics of his proposed legislation concerning the NSA domestic surveillance program. Here is an excerpt:
The president has insisted that he was acting lawfully within his constitutional responsibilities. On its face, the program seems contrary to the plain text of the 1978 Foreign Intelligence Surveillance Act (FISA), which regulates domestic national security wiretapping. The president argues, however, that his inherent constitutional powers supersede the statute. Without knowing the exact contours of the program, it’s impossible to say whether he is right or wrong. But three federal appeals court decisions suggest the president may be right.
The integrity of our nation’s adherence to the rule of law requires an answer to the question of whether this program is legal. The protection of our nation’s security and individual rights requires a modification of the program if it is not lawful as currently fashioned. The challenge, which I have been trying to meet legislatively, is to structure a procedure under which the courts can adjudicate the lawfulness of this highly sensitive program while maintaining the secrecy the president contends is so important.
My bill, the result of months of negotiation with the administration, accomplishes this goal by authorizing consideration of the program by the Foreign Intelligence Surveillance Court (FISC), the court created under FISA to consider warrant applications. The FISC has the expertise to handle this question. Its closed proceedings and unblemished record for not leaking would make full consideration both possible and secure. Not only would the bill permit a determination of the program’s legality but if it were found unlawful in whole or in part, a framework would exist for modifying the program.
Critics complain that the bill acknowledges the president’s inherent Article II power and does not insist on FISA’s being the exclusive procedure for the authorization of wiretapping. They are wrong. The president’s constitutional power either exists or does not exist, no matter what any statute may say. If the appellate court precedents cited above are correct, FISA is not the exclusive procedure. If the president’s assertion of inherent executive authority meets the Fourth Amendment’s “reasonableness” test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power. The bill does not accede to the president’s claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist.
I have a tremendous amount of respect for Senator Specter. I think his efforts to hammer out a compromise over the NSA program are very admirable. I don’t have a clear view of whether his legislation is a good idea or a bad idea, but I’m certainly open to it. (My own take is that it’s hard to take a position on Specter’s bill without knowing the details of the classified program, which of course we don’t know, but that’s a topic for another post.) At the same time, I believe Senator Specter is making two errors here that are important to understand.
First, Senator Specter appears to discuss the lawfulness of a program as if that were the same as the program’s constitutionality. The two are different, however, as the legal dispute over the NSA wiretapping program has focused mostly on whether it violates statutory Foreign Intelligence Surveillance Act (FISA). Specter’s bill would change the Foreign Intelligence Surveillance Act to remove the basis for believing the program violates FISA, and would then ask the FISA court to determine only if the program violates the Constitution. As a result, Specter’s legislation would not answer whether the NSA program is lawful; rather, it would answer whether the NSA program could be made lawful. That would settle one part of the debate, but would preclude resolution of the other part.
Second, I think Senator Specter is mixing two questions when he writes that “[t]he president’s constitutional power either exists or does not exist, no matter what any statute may say.” There are actually two distinct questions here: The president’s constitutional power to act without Congress’s explicit approval, and the president’s constitutional power to act in the face of Congress’s explicit disapproval. The two are not the same.
To see the importance of the difference, consider an example from wiretapping law. In 1968, Congress passed federal Act, which for the first time permitted federal agents to use bugging equipment to monitor private homes pursuant to a court order. But Congress’s legislation left out something important: The legislation said nothing about the authority of the police to covertly enter the home to install the bug. As a result, Courts had to decide whether Congress had implicitly authorized investigators to break into homes covertly to install the bug pursuant to a court order, or absent that, whether the Executive Branch has “inherent authority” to break into the home to install the bug.
Here is how the Sixth Circuit presented the latter question:
Given the 1968 statute which permits eavesdropping, is it “reasonable” under the Fourth Amendment for officers to break and enter someone’s house or office in order to execute an eavesdrop order? Do law enforcement agents have an independent or inherent authority sanctioned by the Fourth Amendment to break and enter to execute a search warrant, a power that may be extended by analogy to the execution of an eavesdropping warrant?
United States v. Finazzo, 583 F.2d 837 (6th Cir. 1978) (Merritt, J.). The Sixth Circuit concluded that the Executive Branch did not have this inherent authority:
In the absence of explicit statutory authorization, we are unwilling to create a wholly new exception to general search and seizure principles which have held for centuries that such conduct is illegal.
Id. The Supreme Court decided the case a year later, and ruled that Congress had implicitly authorized the covert entries as a matter of statutory law. See Dalia v. United States, 441 U.S. 238 (1979). But the key here is that when the Sixth Circuit was making repeated references to the “inherent authority” of the Executive Branch, that clearly meant “authority to act absent Congressional approval,” not “authority to act in the face of a Congressional prohibition.” The answer to the question of whether the searches were authorized hinged on whether Congress had acted; “inherent authority” was ultimately second to the question of Congressional action. Thus, in Dalia, the fact that the Supreme Court concluded that Congress had authorized the covert entry resolved the matter of Executive Authority.
Coming back to Senator Specter’s claim that “[t]he president’s constitutional power either exists or does not exist, no matter what any statute may say,” my sense is that he seems to be slipping past the key question. Of course, Congress cannot trump the President’s “inherent authority” when that inherent authority is used to refer to the authority to act in the face of Congressional prohibition. And indeed, there are some cases in which courts have referred to inherent authority in this way. However, Congress can trump the President’s “inherent authority” when that inherent authority is only the inherent authority to act absent Congressional regulation. My sense is that most legal analysts interpret the court of appeals cases Specter cites to refer to the latter kind of inherent authority rather than the former kind.
Now, of course, none of this touches on the merits of Senator Specter’s bill. But to the extent that his bill reflects the same assumptions in the Senator’s op-ed, I think it’s helpful to understand why Senator Specter’s understanding is different from that of most legal analysts in this area. That’s my sense of it, at least; if I’m mistaken, I look forward to your comments to help set the record straight.
Articles Shed Twenty Pounds, er, Pages
Matt Bodie has answered a question I have wondered about — are articles at top journals really getting shorter? His answer, based on a survey of seven top law reviews: Yes. Here’s the key finding:
- For those articles published in the 2005-2006 editorial season, the average length was 67.13 pages. The median article was 67 pages long. In contrast, those articles published during the 2004-2005 and 2003-2004 seasons averaged 87.76 pages. The median article was 84 pages long.
- Of the 71 articles published in 2005-2006, only four were over 100 pages (5.6%). None exceeded 108 pages. Of the 130 articles published from 2003-2005, thirty-four were over 100 pages (26%). The longest was 218 pages, and twenty-four of the articles exceeded 110 pages.
- Three of the seven reviews — Columbia, Harvard, and Virginia — did not publish an article over 80 pages long thus far in the 2005-2006 season.
More of the data here. It’s also interesting to note that the published articles are still around 15% to 20% longer than what the journals say they prefer. Of course, some of that added length may have resulted from the editing process.
It’s also interesting to ponder how these numbers may be different from the numbers for journals outside of the “top 10.” My sense is that before the new policy, the top journals were publishing articles that were considerably longer than the articles published in most law reviews. I wonder if the new policy has really just brought the “top” journals back into line with everybody else. Consider the average length of articles published after the new policy was put in effect, 67 pages and change. If you had asked me three years ago what the average length of a law review article is, I would have said that the average length is about 60 to 70 pages. It turns out that this was wrong for the seven top journals Matt surveyed; in those journals, the average length was a whopping 88 pages. So it’s at least possible that the new policy has simply brought the top journals back into line with preexisting expectations.
If Only You Could Be A Summer Associate Forever
Today’s New York Times has a story, For Top Law Students, A Sidebar With the Arts. An excerpt:
It was the kickoff cocktail party for the Summer Art Circle, one of a handful of new initiatives meant to match law firms and arts institutions, which have long been seeking new blood (preferably with excess disposable income) to replenish their audiences and donor rolls. The law firms are paying $375 a head to participate.
The firms are doing it for the same reasons that have led them for years to lavish their summer associates with cocktails, beach parties and fancy boat rides: networking and recruiting. Now art has become the latest addition to this summer bonanza for the nation’s top law students, one more piece of evidence — if any was needed — that a life in the law is a good life after all.
I think the key point is that a summer in the law is a good life after all. Enjoy it while it lasts, folks.
Justice Douglas, “The Faith of Our Fathers”
NPR has posted the audio of a segment of Edward R. Murrow’s radio program “This I Believe,” from 1951, featuring an address by Justice William O. Douglas called The Faith of Our Fathers. If you’ve read Bruce Allen Murphy’s biography of Douglas, “Wild Bill” — priceless Posner review here — you’re probably going to wonder how much of it is fictional and made up for a possible future Presidential run. Still, it’s pretty interesting to hear Douglas’s voice.
Thanks to John Barrett for the link.
Picker on Fair Use, Access, and the DMCA
Over at the U of C Faculty Blog, Randy Picker has an excellent post on fair use and the DMCA. It begins:
Try this hypothetical. Writing a novel seems to be the thing for law professors to do these days, so I pen a law-and-economics thriller (how could it not be?). You want to read it but I have not released any copies but you know that I have one printed sitting in my bedroom at home. You break into my house, steal the novel, immediately read it, and blog a book review, which includes juicy quotes (“He had the supply, she had the demand, and in the heat of the moment they vertically integrated.”)
Where does this put us when the cops catch you? Do you go to jail? Can I sue you for copyright infringement?
Read the rest of the post here.
UPDATE: While I’m on the topic, I shoud point out the fruits of my own dabbling in the waters of the DMCA from back in 2002: A Lukewarm Defense of the Digital Millennium Copyright Act. It’s a very short essay, just 7 pages.
Treason and the Constitution
If you’ve read over the Constitution a few times — maybe it’s kind of old-fashioned to actually read the Constitution, but I trust many readers have done this — you’ve probably noticed the remarkable number of times the document mentions the crime of treason.
Treason first shows up in the Speech and Debate Clause, Article I, Section 6:
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by law, and paid out of the Treasury of thc United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
Here it is again in the Impeachment clause, Article II, Section 4:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
But the real attention comes in Article III, which actually provides a constitutional definition of the crime of treason, as well as special rules of criminal proceudre to be used in treason trials. Here is Article III, Section 3, generally known as the Treason clause:
Section. 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
But wait, there’s more! Treason is also mentioned in Article IV:
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
So by now you’re probably wondering, dude, what’s the deal with the Framers’ obsession with treason? When the Framers met in Philadelphia to draft the Constitution, did they just have treason on the mind?
The explanation, as best I can tell, is that the crime of treason had been a very big deal in England for several centuries up the time of the framing of the Constitution. The Framers of the Constitution were certainly familiar with this history, and they didn’t have any reason to believe the future would be different from the past.
English Kings had long been big fans of bringing treason cases against their enemies, and the origins of English criminal procedure law were largely traceable to outcry (particularly among the wealithy — go figure) of the unfairness of treason prosecutions. For example, the Constitutional definition of treason was copied almost verbatim from a treason statute enacted in 1351 during the time of Edward III. Also, a number of procedural protections that made it into the Bill of Rights, such as the right to counsel and the right to a public indictment, had been first introduced in England only for treason trials as part of the Treason Trials Act of 1696.
You can also see the special status of treason in the early English criminal law treatises. If you pick up a modern treatise on criminal law these days, the first crime — the most serious offense — is murder. Not so in the 17th and 18th century. Blackstone’s chapter on high treason came much before murder. And in Sir Edward Coke’s Institutes, treason is not only discussed first, but it receives mention in the title of the book on criminal law: The Third Part of the Institutes of the Laws of England; Concerning High Treason, and Other Pleas of the Crown and Criminal Causes.
So at the time of the framing, the crime of treason was a very big deal. And indeed, it would continue to be a big deal in the late 18th century and early nineteenth century, including in the most famous case of criminal law in the early Republic: the treason trial of Aaron Burr presided over by Chief Justice John Marshall.
You don’t hear a lot about treason these days, except perhaps from Ann Coulter. But it was a very big deal at the time of the framing, and my understanding is that this history explains why it was mentioned so often in the Constitution.
Lawsuit on NSA Domestic Surveillance Can Go Forward, Court Rules
Judge Vaughn Walker of the Northern District of California handed down an important ruling today rejecting motions to dismiss EFF’s lawsuit against AT&T for its participation in the NSA domestic surveillance and call records program.
It’s a very long opinion, but here’s the gist of it: Judge Walker rejected DOJ’s argument that the suit had to be dismissed outright under the state secrets privilege. Walker ruled that enough of the various programs had been acknowledged by the government and AT&T that the existence of the programs wasn’t a state secret. I assume an appeal will be coming soon, but in the meantime the case will be set to go on to the discovery stage. Notably, the state secrets privilege will continue to play a key role at that stage: the gist of Walker’s opinion is that he’ll scrutinize each discovery request for privilege rather than dismiss the case outright at the beginning.
The opinion also has an interesting section on the Fourth Amendment claims in the complaint. It’s really just dicta, as Walker had already rejected the theory which would have made the issue relevant. But AT&T had argued that it was immune from suit under the qualified immunity doctrine because the Fourth Amendment issues in the case were not “clearly established.” After ruling that AT&T was not entitled to qualified immunity in any event, Judge Walker added a “note” rejecting the claim on the merits of the Fourth Amendment issue. Here’s the discussion:
The court also notes that based on the facts as alleged in plaintiffs’ complaint, AT&T is not entitled to qualified immunity with respect to plaintiffs’ constitutional claim, at least not at this stage of the proceedings. Plaintiffs’ constitutional claim alleges that AT&T provides the government with direct and indiscriminate access to the domestic communications of AT&T customers. See, e g, FAC, ¶ 42 (“On information and belief, AT&T Corp has provided and continues to provide the government with direct access to all or a substantial number of the communications transmitted through its key domestic telecommunications facilities, including direct access to streams of domestic, international and foreign telephone and Internet communications.”); id, ¶ 78 (incorporating paragraph 42 by reference into plaintiffs’constitutional claim).
In United States v United States District Court, 407 US 297 (1972) (Keith), the Supreme Court held that the Fourth Amendment does not permit warrantless wiretaps to track domestic threats to national security, id at 321, reaffirmed the “necessity of obtaining a warrant in the surveillance of crimes unrelated to the national security interest,” id at 308, and did not pass judgment “on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country,” id. Because the alleged dragnet here encompasses the communications of “all or substantially all of the communications transmitted through [AT&T’s] key domestic telecommunications facilities,” it cannot reasonably be said that the program as alleged is limited to tracking foreign powers. Accordingly, AT&T’s alleged actions here violate the constitutional rights clearly established in Keith. Moreover, because “the very action in question has previously been held unlawful,” AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.
(paragraph break and emphasis added)
This Fourth Amendment discussion seems somewhat mystifying to me. The wiretapping in Keith is distinguishable from the alleged facts in the NSA program on a number of possible fronts, so it seems quite odd to simply announce without analysis that “the very action” has been held to be unconstitional. To pick just one front, there is a foundational difference in electronic surveillance between targeting particular evidence and incidentally collecting evidence to enable the targeting of other evidence. Judge Walker’s passage seems to simply ignore that difference, which is hard to explain.
Nonetheless, this is (as far as I know) the first judicial opinion to express a view of the merits of the NSA program. Even if it’s dicta, the reasoning is unimpressive, and it is based only on facts alleged in the EFF’s complaint, Judge Walker’s statement that it “cannot seriously [be] contended” that “the alleged domestic dragnet was legal” based on the complaint seems likely to impact the debate.
Finally, it’s worth keeping in mind that this opinion may be very temporary. First, I gather an appeal is coming soon (interlocutory appeals are usually permitted in this sort of context, at least as I understand it). Second, if passed into law, Senator Specter’s NSA bill will pull jurisdiction over these issues away from Judge Walker, as well as the Ninth Circuit on appeal, and will ship the case to the FISA Court of Review instead. Judge Walker’s opinion today is a good hint of why that may make a considerable difference in the outcome of the litigation.
Thanks to Deven Desai for the link.
A Boring Era For Public Law Scholars?
In a post over at Concurring Opinions, Nate Oman writes:
I recently had a conversation with an acquaintance about the predicament of con law scholars. He made the point that the decline in the Supreme Court’s docket has had a big impact on con law scholarship. It used to be the case, he said, that the Court was churning out enough new decisions that con law professors could keep busy working out doctrinal puzzles and fitting the new cases into their vision of the fabric of constitutional law. With fewer cases to work on, however, con law professor have to find something else to do.
I’ll disagree with Nate’s acquaintance about one thing: I don’t think that the cause of this dynamic is the size of the Supreme Court’s docket. The Supreme Court can make a lot of changes to the law in just a handful of decisions. They don’t need lots of cases to do that.
At the same time, Nate’s acquaintance is on to something important that is often overlooked these days in debates on the role of the Supreme Court. Relative to most periods, the last few years have been a pretty boring period for the Supreme Court. Now before everyone jumps at this, please note the important caveat: relative to most periods. I’m making a relative statement, not an absolute one, and I suppose I’m implicitly limiting it to the period of the modern Supreme Court of the post-WWII era. True, there is lots of fear or hope that the law will change dramatically in the future, and the Supreme Court’s cases fiddle with the law here and there, but relative to other periods this is a time of considerable stability in existing public law doctrine.
I was thinking of this recently when I read the first edition of the criminal procedure text I recently joined. The first edition of Kamisar & Hall’s Modern Criminal Procedure — as of this summer, it’s Kamisar, LaFave, Israel, King & (gulp) Kerr, but back then it was just Kamisar & Hall — came out in 1965. I recently purchased a copy of it, both because I was interested in the evolution of this book in particular and because recently I’ve been reading a lot about the history of criminal proceudre.
The 1965 edition of the Kamisar casebook is truly remarkable. It’s hard to overstate how uncertain the law was at the time. The Supreme Court was in the midst of ditching many of the centuries-old doctrines of criminal procedure and replacing it with new doctrines. As a result, reading the casebook is something like reading a movie review written by someone who just watched half a movie, was forced to leave, and immediately had to write a review sumarizing the first half and offering lots of speculation about what might happen in the second half of the movie. (Incidentally, I gather this state of flux explains the somewhat odd title of the book: it’s “modern” criminal procedure because it’s about the new set of decisions that were being handed down.)
I plan to blog more in-depth about this at some point soon, because it’s a really interesting story, but think of the difficulties of trying to write a criminal procedure casebook in the summer of 1965. Most of the major topics in criminal procedure had been upended by 5-4 decisions within the last five years. In the Fourth Amendment chapter, Mapp v. Ohio was one of your older precedents: that 5-4 decision had been around for a full four years. For your Fifth Amendment chapter, the Court had just applied the Fifth Amendment to the states one year ago by another 5-4 vote in Malloy v. Hogan. Your material on confessions would feature the 5-4 decision in Escobedo v. Illinois, which was a year old. Finally, your Sixth Amendment chapter had to be based heavily on Gideon v. Wainright, which had been around for two years (although it was a relative rock in the doctrine, being unanimous as to the result).
Plus, the Court’s decisions were strongly hinting at even more dramatic changes ahead. You could look at the tea leaves and recognize that some big changes were coming to the law of confessions, searches, and stops and frisks. Indeed, the Court was about to decide three of the basic building blocks of today’s criminal procedure doctrine: Miranda v. Arizona (still a year away), Katz v. United States (two years away), and Terry v. Ohio (three years away).
Criminal procedure is just one area, but I think it provides an interesting lens to see the rest of the Court’s docket. These days, even most of the “big” Supreme Court cases are on relatively narrow topics. So I wouldn’t be surprised, going back to Nate’s post, if con law scholars are kind of bored these days. Relative to other eras, not that much is happening.
That’s my impression, at least. Am I mistaken? I look forward to your comments.
UPDATE: I should also point out that the Court’s small docket is in fact related to the relative stability of existing law. It’s not the cause of the stability, but it is another result of it. The current Court is very heavily focused on resolving circuit splits, and that leads to fewer grants and decisions that are more likely to be interstitial than we might see otherwise.
More Supreme Court Litigation Clinics?
Over at The Legal Times, Tony Mauro has this interesting story on the growth of Supreme Court Litigation Clinics at a number of law schools. It will be interesting to see how many of these clinics can exist at the same time given the relatively small size of the Court’s docket.
ATLA May Be Renamed
Over at the VC, Jonathan Adler reports:
The Association of Trial Lawyers of America (ATLA) may change its name to the “American Association for Justice.” Why? Well, according to ATLA president Ken Suggs, “”Our research shows that if our message is about helping lawyers, we lose. On the other hand, if we’re about getting justice and holding wrongdoers accountable, we win.”
So in addition to the Alliance for Justice, and the Institute for Justice — which of course disagrees almost 100% with the Alliance for Justice — now we might have the American Association for Justice.
Is it too late to change the name of this blog to “Law Blog for Justice”?
Backup URL for the Volokh Conspiracy
The Volokh Conspiracy is down right now, due to a problem that we’re working on but haven’t quite fixed. In the meantime, you can visit the VC at this alternative site.
Should Junior LawProfs Do Empirical Work?
Lisa Fairfax has a very interesting post at the Conglomerate on whether untenured lawprofs aiming for tenure should do empirical research. Specifically, she articulates four arguments raised at a conference against such work. In very condensed form, the arguments are these: 1) it takes too long, 2) it takes a lot of work, 3) empirical articles are harder to place in general law reviews, and 4) it’s hard to get evaluations of such work for tenure purposes.
There is an excellent comment thread, and I particularly agree with this comment by Frank Cross. Larry Solum also has comments over at Legal Theory Blog.
I think it’s important to note that empirical scholarship has one significant advantage for both placement and tenure purposes. A lot of traditional law review articles just rehash arguments that have been made many times before, or are essentially appellate briefs making the author’s best argument for why some policy the author dislikes should be ruled unconstitutional. The open format permits this; articles can just “explore” an issue, or can make an argument that is pretty uncontroversial or else not well supported. My sense is that empirical scholarship tends to have more discipline: the format pushes authors to frame a question that has not been answered, to try to answer it, and to discuss the consequences (and weaknesses) of the answer. My sense is that articles editors like that, and I would guess that tenure committees do as well.
Full disclosure: My first published article was an empirical study, and I have an engineering background that probably makes me less scared of numbers than most lawprofs. So actual mileage may vary.
President Personally Blocked Inquiry into DOJ Role in NSA Program
From the Associated Press:
Attorney General Alberto Gonzales said Tuesday that President Bush personally blocked Justice Department lawyers from pursuing an internal probe of the warrantless eavesdropping program that monitors Americans’ international calls and e-mails when terrorism is suspected.
The department’s Office of Professional Responsibility announced earlier this year it could not pursue an investigation into the role of Justice lawyers in crafting the program, under which the National Security Agency intercepts some telephone calls and e-mail without court approval.
At the time, the office said it could not obtain security clearance to examine the classified program.
Under sharp questioning from Senate Judiciary Committee chairman Arlen Specter, Gonzales said that Bush would not grant the access needed to allow the probe to move forward.
Thanks to reader Allen Asch for the link.