The Right to Not Be Annoyed: A Dialectic (Part I of III)

She: Did you get that Amber Alert last night?

He: What are you talking about?

She: Last night, at around midnight, the government sent out an “Amber Alert” to all California cell phone users. My iphone started shrieking, screaming, buzzing. I seriously thought aliens were attacking the planet. It took me a while to realize that it was just an Amber Alert.

He: Hmm. Validates, ex post, my choice to fall asleep on the couch while watching “MANswers” last night.

She: Shut up. Anyway, can the government do that?

He: Do what?

She: Send out alarms that scare people half to death in the wee small hours of the morning.

He: They can commandeer the airwaves for an Emergency Broadcast Service warning. They can robocall you. They can stop you at a DUI checkpoint. Why can’t they send you an Amber Alert?

She: Because it’s really damned annoying, that’s why. There’s a right to privacy; why isn’t there a right to not be annoyed?

He: Well, let’s start with an obvious point: you could have disabled the Amber Alert function on your iphone. Problem solved.

She: Well, I only learned about that function after the government scared me half to death. Do you mean to say that the government gets one free scare of all cell-phone users? But — granting your point —  let’s say that I couldn’t disable the function. To repeat my question, why isn’t there a right not to be annoyed by the government?

He: For one thing, it’s not in the Constitution.

She: I’ll find that argument convincing just as soon as you find the word “privacy” in the Constitution. Couldn’t you argue that the right not to be annoyed is penumbral to, say, the Third Amendment, in the same way that the right to privacy is penumbral to other provisions of the Bill of Rights?

He: You managed to keep a straight face while saying that. Congratulations. It’s not often you hear someone advocate an extension of the “penumbral” theory to other contexts. I encourage you to try that out in court and see how it goes.

She: You seem to be confusing mockery with effective argumentation. You still haven’t answered my question — why, when courts recognize a right to privacy that doesn’t appear on the face of the Constitution, is a right not to be annoyed beyond the realm of serious consideration?

He: I can think of several reasons. First, try to define “annoying.” I’ll bet you can’t; it’s kind of a self-defining term that encompasses a lot of stuff. And therein may lie the rub. So many things that the government does are — or at least could be considered — annoying that it would be impossible to square such a right with the government’s enumerated and necessary powers. Like, for example, the collection of taxes. Tax bills are really annoying, but they’re completely contemplated by the Constitution.

She: But isn’t “privacy” equally nebulous and far-reaching? People write books just trying to define the term. And let’s not even get started with the law that surrounds obscenity.

Look, I’m not saying that there is a categorical right not be annoyed. But what about a qualified right, in which the magnitude of the annoyance is balanced against the government interest being advanced and the efficacy of the annoyance in accomplishing that end? That sort of reasonableness approach seems to work out OK in some search-and-seizure cases. Why not here?

(Part II will post later on today)

UPDATE: I’ll level with you. I got distracted that evening, and was kind of bored with this topic anyway, so I decided not to write Parts II and III. So, um, let’s just assume that “He” wins.




Do Judges Have Slumps?

I’ve recently come to wonder if good judges, like good baseball players, good actors, and good writers, sometimes go through “slumps”–periods in which they issue opinions that do not meet their normally high standards. If judges can have slumps, I think Judge Kozinski — the Ninth Circuit’s cleanup hitter — might have gone through one last year.

The California Court of Appeal’s issuance of its opinion in Baughman v. Walt Disney World Co. yesterday got me to reading the Ninth Circuit Court of Appeals’ opinion in its Baughman case, issued exactly a year earlier. Both cases considered whether Disney violated the Americans with Disabilities Act by refusing to allow Segways at Disneyland due to safety concerns. (I use the past tense because Disney recently settled a nationwide class action involving similar allegations. My understanding of the settlement agreement is that Disney has agreed to provide patrons with standing motorized devices of its own design.) The California Court of Appeal said “no”; the Ninth Circuit, in an opinion authored by Judge Kozinski (joined by Judges Reinhardt and William Fletcher), said, “probably.”

My complaint here isn’t necessarily with the Ninth Circuit’s ruling, which reversed the district court’s entry of summary judgment in Disney’s favor. What the California Court of Appeal saw as a reasonable, amply justified safety measure, the Ninth Circuit instead perceived to be a blanket policy justified only by speculation. While Disney’s Segway ban strikes me, personally, as perfectly sensible, I don’t know enough about the ADA and its requirements to pick sides.

What bothers me instead is the overly casual tone and shallow content of Kozinski’s opinion in Baughman. It’s difficult to put my finger on the precise problem, but the opinion strikes me as awfully glib. Yes, even for Judge Kozinski. In all honesty, the opinion reads like something written by someone who is trying to imitate Judge Kozinski’s writing style. Similarly, Kozinski’s opinion shoots over the record; some of the safety concerns that proved dispositive to the California Court of Appeal receive no mention by the Ninth Circuit.

I haven’t listened to the oral argument in either Baughman case, so maybe these problems simply result from different litigation positions that Disney took in the two appeals, or appear for some other reason(s). But this wasn’t the only strange opinion that Judge Kozinski wrote last late spring-early summer: In Marsh v. San Diego, again sitting on a panel with two very liberal judges, he pulled a due process claim out of Everest-thin air. (Only to find that qualified immunity nevertheless applied.)

The point of this post isn’t to pick on Judge Kozinski, because as a matter of course he’s much smarter than I am, and doesn’t, and shouldn’t, give a tinker’s damn what I think. I’m just wondering about the broader question of whether judges go through slumps — periods in which they issue more than their usual share of awful, or at least subpar, opinions.

Everyone else — law professors included; one probably could view my career as one long, Ray Oyler-esque slump — have these sorts of downturns, whether due to distractions, health issues, or periods where it’s hard to concentrate or write. Why wouldn’t judges? (Here, I’m talking about several bad opinions in a row, not just the occasional clunker.) Plus, with judges, there’s an additional variable: clerks. Mix a couple of bad clerks with a hands-off judge, and you have a recipe for a year-long slump.

Anyway, just a thought, for the next time you see a bad run of opinions by a good judge.



Post-trial Memoranda from Floyd v. City of New York (Stop-and-Frisk Litigation)

I haven’t been following the Floyd lawsuit that challenges New York City’s stop-and-frisk practices as closely as I should, and I need to fix that. Just today, I downloaded the postrial memoranda that the defendants and the plaintiffs filed with the district court, to read over the next week or so. In case any of you would like to read these documents, too, I have posted them here (defendants’ memorandum) and here (plaintiffs’ memorandum).

Federal Charges Against George Zimmerman?

I deliberately avoided coverage of the George Zimmerman trial, as I did the Casey Anthony trial, the O.J. Simpson trial, and most other high-profile cases. But upon waking up this morning, I did take notice of Zimmerman’s acquittal and ensuing calls for federal authorities to bring “civil rights charges” against him. This got me to thinking, what civil rights charges? And how likely is it that the federal authorities will file these charges?

Upon review, it appears that the closest “fit” among federal crimes would be 18 U.S.C. § 249, a recently enacted federal hate-crimes statute (officially, The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009). Section 249(a) provides:

(a) In General.—

(1) Offenses involving actual or perceived race, color, religion, or national origin— 

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—

(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—

(i) death results from the offense; or
(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
Section 249(a)(2)* is to similar effect, except that it applies to crimes motivated by “the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person,” and contains a more elaborate federal jurisdictional “hook.”
What is the government’s track record in section 249 cases? Well, there have been few section 249 prosecutions to date. In looking for cases that have concluded their district-court phase, I could find only the following:
United States v. Maybee: Last summer, in United States v. Maybee – timing-wise, the first appeal of a conviction under section 249 — the United States Court of Appeals for the Eighth Circuit affirmed a defendant’s jury-trial conviction under section 249. Per the government’s appellate brief, the evidence at trial “established that defendant, along with two others, while driving his truck, chased a car occupied by five young Hispanic men and deliberately used his truck to repeatedly strike the victims’ car, ultimately causing the car to crash and burst into flames.” The record also contained abundant evidence that the defendant and his companions (one of whom pleaded guilty to a section 249 charge prior to trial) used racial slurs against the victims just prior to the attack.

United States v. Hatch Earlier this month (July 2013), in United States v. Hatch, the Tenth Circuit affirmed a conviction, upon the defendant’s guilty plea (reserving right to appeal), of conspiracy to violate the statute. According to the Court of Appeals, “In April 2010, a mentally disabled Navajo man—whom the record identifies only as ‘V.K.’—came to [a] restaurant. [Another individual] convinced V.K. to come to [his] apartment. Hatch and [a third person] later joined [them] there. At [the] apartment, the three white men drew on V.K.’s back with markers. They told him they would draw “feathers” and “native pride” but actually drew satanic and anti-homosexual images. They then shaved a swastika-shaped patch into V.K.’s hair. Finally, they heated a wire hanger on the stove and used it to brand a swastika into V.K.’s arm.” One of Hatch’s two co-defendants also was convicted upon plea of a section 249 charge; the other was convicted upon plea of conspiracy to violate this law.

In both Maybee and Hatch, the defendants argued that section 249 was unconstitutional, in that Congress lacked authority to enact the statute. Both Courts of Appeals rejected this argument, concluding that the Thirteenth Amendment conferred sufficient authority upon Congress.

United States v. Mullet: Some of you may have heard about this case, in which the defendants were charged with federal crimes for, inter alia, cutting off the beards of their foes within the Amish faith. The lead defendant, Samuel Mullet, Sr., was convicted by a jury of violating section 249, as well as other crimes. More than a dozen co-defendants also were convicted of conspiring to violate the statute.

United States v. Thompson: Here, the defendant pleaded guilty to a single section 249 count. The felony information, filed in the District of Minnesota in July 2011, alleged that Thompson struck an elderly Muslim man of Somali descent while telling him to “go back to Africa.”

United States v. Hall: A 2013 guilty plea by a member of the Aryan Brotherhood. Hall, an inmate in a federal prison in Texas, assaulted another inmate whom he believed was gay.

United States v. Larson: A guilty plea associated with an assault upon a Sikh cab driver in Washington state. The incident took place in October 2012; Larson entered his plea in June 2013 in the Western District of Washington.

United States v. Jenkins: This federal prosecution, brought in 2012, stemmed from the kidnapping and assault of a gay man in Kentucky. Two female defendants pleaded guilty to aiding and abetting a hate crime assault, in violation of section 249. Their two male co-defendants pled not guilty and went to trial. At trial, the men both were convicted of kidnapping and conspiracy charges, but were acquitted of the section 249 crime.

Unfortunately, I don’t know if these cases represent all section 249 prosecutions to date. I may have missed a case, especially if it led to a dismissal or acquittal (making the DOJ somewhat less enthusiastic about issuing a press release).

Nevertheless, it’s pretty clear that the feds don’t file very many section 249 charges. Why? Well, as I’ve written elsewhere, civil-rights crimes can be very difficult to prove. The failure to earn convictions on the section 249 count as against the Jenkins defendants who chose to go to trial underscores the difficulty in proving, beyond a reasonable doubt, the specific intent necessary to establish a hate-crime offense. My sense is that federal prosecutors, aware of these difficulties, properly are reserving section 249 charges for relatively clear-cut cases. (Indeed, section 249 cases are so rare that the DOJ’s press releases for two different cases (Thompson and Hatch) both identified the case as the first to be brought under the Shepard-Byrd Act. Oops.) I have not read anything about the Zimmerman case that would lead me to believe that the section 249 case against him is comparably obvious, but again, I have not been following the case closely.

Turning the page, some of you who recall the federal prosecutions of the police officers involved in the Rodney King beating may wonder about the applicability of those crimes to the Zimmerman case. These offenses, 18 U.S.C. §§ 241 and 242, don’t apply to the Zimmerman matter. The first of these crimes is a conspiracy offense, and you can’t have a one-person conspiracy. Per the Department of Justice’s website, the second of these offenses “makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States,” But Zimmerman wasn’t acting under “color of law” insofar as I can tell, so I don’t think that crime would fit, either.

* An earlier version of this post mistakenly referred to this subdivision as section 249(b).


Green v. Pro Football Inc. d/b/a Washington Redskins et al.

As some of you may have heard, former National Football League linebacker Barrett Green recently filed a lawsuit against the Washington Redskins, their former defensive coach Gregg Williams, and former Redskins tight end Robert Royal.

In this lawsuit, Green brings a battery claim against Royal, a resulting vicarious liability claim against the Redskins, and negligence claims against all three defendants. These claims derive from a career-ending knee injury that Green, then a member of the New York Giants, suffered as a result of a hit by Royal in a 2004 game.

According to the complaint, Williams “instructed and/or encouraged” Royal to injure Green as part of an “bounty” program, whereby “Defendant Redskin players were encouraged to intentionally injure opponents so that they would be forced to leave the game.”

I haven’t seen a copy of the complaint elsewhere, so I thought I’d post it here. It’s an interesting case. Though I am certainly no expert in Maryland law, I tend to agree with Professor Gabe Feldman’s analysis that Green will have a tough row to hoe with this lawsuit, due to statute of limitations and causation issues with his claims. Breaking News: United States Supreme Court Reveals Reason for Delay in Issuance of Fisher Opinion

WASHINGTON, DC (UP) (JUNE 20, 2013): In a rare press conference today, United States Supreme Court Chief Justice John Roberts disclosed why the Court has taken so long to issue its opinion in Fisher v. University of Texas, the affirmative-action case argued last October.

“I want to put to rest all of the nutty conspiracy theories that have circulated around the Fisher case,” Roberts told reporters. “Any speculation that the Court is struggling with drafting the opinion, or opinions, is pure nonsense.”

“The truth behind the delay is far more mundane,” Roberts said. “As you may have guessed, we’re still waiting for the go-ahead from Madame Zena, the official Court Astrologer.”

Roberts told reporters that in the Court’s most recent seance, held earlier this month, Zena advised the justices that with Venus rising in the East, the moon remaining in the seventh house, and Capricorn and Pisces at a semisquare angle, the stars and planets would not allow the Court to announce and distribute its decision in the Fisher case.

“She told us that she perceived dark times ahead for any affirmative-action opinion issued while the skies were so aligned,” Roberts said. “And that was that, so far as we were concerned.”

At the same seance, Zena did give the Court the go-ahead to announce opinions dealing with criminal procedure and antitrust issues. “Madame Zena told us that the horoscope looked favorable for decisions on the right to remain silent, price-fixing conspiracies, and sentencing issues,” Roberts recounted. “So we rushed Salinas, Activis, and Alleyne out the door.”

Roberts acknowledged that the Court’s longtime insistence on following Madame Zena’s predictions sometimes requires sacrifices. “We didn’t really say precisely what we wanted to in any of those cases [referring to Salinas, Activis, and Alleyne],” Roberts said. “I think we reversed one lower court we meant to affirm, and vice-versa. And if you’re wondering about all the typos in Salinas, well, now you have your answer. But Madame Zena said that in a couple of days, Neptune would withdraw behind Saturn, so of course we had to act fast.”

The press conference was short but cordial, with Chief Justice Roberts growing testy only when a reporter referred to the Court Astrologer simply as “Zena.” Roberts flushed and said, “That’s MADAME Zena,” staring angrily at the chastened reporter.

Madame Zena has served as the Court Astrologer since OT 2004, when she replaced Count Zoldar. Aside from ruing that her talents are both a blessing and a curse, she declined to comment for this report.

When asked when the public might expect the Court’s opinion in Fisher, Roberts shrugged his shoulders and gestured upward to the heavens. “Don’t ask me, ask them,” he said.

“Not all analogies are created equal,” and Florida v. Jardines

The other day, I read an interesting article just published in the journal Neuropsychologia, titled “Not all analogies are created equal: Associative and categorical analogy processing following brain damage.” As a matter of course, this article made me think of the United States Supreme Court’s recent decision in Florida v. Jardines, a “dog sniff” case.

In Florida v. Jardines, the Court (by a 5-4 margin) held that police use of a trained scent dog at the front door of a set-back, single-family residence amounted to a Fourth Amendment “search.” In reaching this conclusion, Justice Scalia’s majority opinion distinguished the circumstances from a situation in which a police officer makes a similar front-door approach as a prelude to a so-called “knock and talk.” To the Jardines majority, homeowners have customarily given their implied consent to the latter type of police contact, such that it is not a “search.” No such consent has been given to the dog-sniff technique, the court reasoned, so it is a “search.”

Fair enough, though I can’t wait for the case that’ll arise once technology gets to the point where police officers can take sense-enhancing pills. As I said, the Jardines case came to mind when I read the article on analogies. The abstract for this article provides as follows (with one technical sentence omitted):

Current research on analogy processing assumes that different conceptual relations are treated similarly. However, just as words and concepts are related in distinct ways, different kinds of analogies may employ distinct types of relationships. An important distinction in how words are related is the difference between associative (dog–bone) and categorical (dog–cat) relations. To test the hypothesis that analogical mapping of different types of relations would have different neural instantiations, we tested patients with left and right hemisphere lesions on their ability to understand two types of analogies, ones expressing an associative relationship and others expressing a categorical relationship. . . . We argue that categorical relations additionally rely on the right hemisphere because they are more difficult, abstract, and fragile, and contain more distant relationships.

As the abstract indicates, the basic point of the article is that “categorical” analogies are more difficult to draw than “associative” analogies are. In making this argument, the authors assert:

the relationships or mappings between words in categorical analogies are qualitatively different than those in associative analogies. Associative relations between two words are
typically based on actual events (a fish swimming in the sea) that can be directly experienced. The two items co-occur in time and space. In this sense such relationships are concrete. Categorical relationships, even those using concrete words, are less concrete than associative ones. They are feature-based, and not all features are equally important in establishing a relationship. Boxes and bottles are both containers, but some features must be ignored (shape, material) while others attended to (function of containment) in order for a relationship to be established.

Anyway, this article’s thesis would seem to have some application to legal combat, in which parties seek to analogize the present case to other matters in which courts have  reached favorable rulings. If the authors are correct, their work suggests that parties often would do well to brainstorm and stress associative analogies, instead of relying exclusively on categorical likenesses. This point would seem to hold particularly true in situations where the disposition will depend in some measure on custom and tradition, as often is the case in Fourth Amendment “was there a search” matters.

For example,the article got me to thinking about how the result in Jardines hinged upon the absence of a good associative analogy (dog sniff-porch) from the prosecution’s standpoint. Both sides made categorical analogies in Jardines, with the defense likening dogs to heat imagers (per Kyllo) and front-porch use of binoculars, and the prosecution analogizing dog sniffs outside a house to dog sniffs outside a car (Caballes) or luggage at an airport (Place). But Justices Scalia’s analysis did not dwell on favorable categorical analogies (though Justice Kagan’s concurring opinion did), and honed instead on whether or not homeowners grant implied consent to law enforcement dog-sniffs — an analysis predicated upon the lack of a ready associative analogy.

As a matter of course, there’s still the old lawyers’ level-of-generality issue to think about in this context. After all, the government prevailed in the overflight cases of the 1980s even though there was only a “look down-airplane” analogy to rely upon, as opposed to “police officer look down-airplane.” But that’s a nuance, and goodness knows no one reads this blog for those sorts of fine points.

Is the U.S. Attorney’s Office for the District of Massachusetts Really “Particularly Immoral”?

As part of the ongoing conversation over the charging practices of federal prosecutors, prompted by the death of Aaron Swartz, one commentator observed that the United States Attorney’s Office for the District of Massachusetts–which prosecuted Swartz–was, based on her experience, “particularly immoral.”

The writer cited only two instances of perceived “immorality” in support of this charge. I suspect the commentator had other examples in mind, but wished to spare readers a series of war stories. But the accusation, as well as the rather slender evidence advanced to support it, got me to wondering. If one wanted to prove that a particular U.S. Attorney’s office was “particularly immoral,” how would one go about doing it?

Since most of the criticisms of the Swartz prosecution sound in perceived “overcharging” by the prosecutors involved, I decided to focus on “overcharging” as evidence of “immorality.” Here, it’s important to define what I mean by “overcharging,” which people use to describe several distinct, though often overlapping, phenomena. In addressing the issue at hand, I concentrated on those species of “overcharging” in which prosecutors allege crimes with the intent to either reduce or dismiss them as part of a plea bargain to other offenses. Attacks on this type of overcharging don’t (necessarily) accuse the prosecutor of filing charges on “insufficient” proof, whatever that means. Instead, the argument accuses the prosecutor of engaging in an illegitimate practice by using criminal charges as bargaining chips.

So, if this practice amounts to overcharging, and this sort of overcharging represents an “immoral” practice, how to measure it? Here, I tapped a series of datasets I have pulled together from data compiled by the Administrative Office of the United States Courts (AOUSC) and the Executive Office for United States Attorneys (EOUSA), which I have used for other purposes in the past. These datasets reflect the disposition of charges filed in cases terminated in United States District Courts between October 2002 and September 2009. The data can be sorted by judicial district, and thereby yield a picture of charge dispositions in each U.S. Attorney’s jurisdiction.

Now, the data have their flaws. They contain some inputting errors, for one thing. Though they are portrayed as comprehensive, I have spotted at least a few missing cases. The data do not distinguish between cases handled by the local U.S. Attorney’s office, and those prosecuted out of Main Justice. Finally, and most important, while the data relate the charges filed against each federal defendant (with the AOUSC data relating only the five “most serious” charges, as measured by base offense level), the records do not include information specific to each offender (such as his or her criminal history). This gap means that  one can’t divine from the data alone where on the Sentencing Guidelines a particular defendant would fall, if convicted.

These limitations mean that the data don’t yield what would represent one useful measure of overcharging–juxtaposing the maximum possible sentence that would adhere in a case, as charged, against the prosecution’s actual plea-bargain demand to the defendant. But one can tap the data in other useful ways. For example, because the data identify the district in which each case was brought, one might parse, shuffle, and collect the data to rank U.S. Attorneys’ offices along the following lines (among others):

Dismissals in Pled Cases: the percentage of charges that were dismissed in cases resolved by guilty or no contest plea. Here, a high dismissal rate would seem suggestive of aggressive charge-bargaining;

“Most Serious Charge” Reductions: the percentage of cases, resolved by plea, in which the offense designated as the “most serious charge” at the time of initial case filing no longer held this status at the time of case termination. Once again, higher dismissal rates would tend to suggest aggressive charge-bargaining; and

Dismissals of “Bargaining Chips” in Pled Cases: the frequency with which, in pled-out cases, prosecutors dismissed a charge that practitioners widely appreciate as a bargaining chip, such as the firearm enhancement found at 18 U.S.C. 924(c).

I concede that none of these metrics come close to perfection. Even assuming the accuracy of the data, they are subject to skewing influences such as docket composition and prosecutorial tactics such as threatening to file a more severe superseding indictment, instead of “bargaining down” an existing case. But if properly understood and limited, these metrics have their uses. Especially to the extent that the data corroborate each other, they may yield “yellow flags,” spotlighting offices whose practices may warrant further scrutiny (or praise).

So, what do these analyses yield? Well, I am writing up a short essay that relates the results, while trying to clarify what is meant by the term “overcharging.” I should have a draft done within the next week or two; toss me a line if you’d like a copy, or if you edit a law review that has very low standards. For now, I’ll just say that many of the same judicial districts tend to pop up again and again at the extremes of these rankings.

And, toward the point of this post, what about the District of Massachusetts? Well, with the caveat that I still need to double-check the data, it appears that this District (meaning, presumably, the U.S. Attorneys who practice there) has built a record that does not suggest pervasive charge manipulation–at least relative to other U.S. Attorney’s offices. Specifically, among federal districts, the District of Massachusetts had either the second- or the third-lowest charge-dismissal rate over the studied time span (the difference depends on whether one relies on the AOUSC data or the EOUSA data on this point). The District also had the seventh-lowest rate of 18 U.S.C. 924(c) plea-deal charge dismissals.

So, while acknowledging that the measures I used don’t exhaust the possible grounds for a finding of “immorality,” I don’t perceive from my preliminary review of the data much substantiation for the charge that the Massachusetts U.S. Attorney’s office is “particularly immoral.”


Adam Silver, Kimba Wood, and Delegation of Settlement Talks to Law Clerks

So, I was reading today’s Wall Street Journal when I came across an article on Adam Silver (University of Chicago Law School ’88), the heir apparent to Commissioner David Stern’s throne atop the NBA. It appears that after graduating from law school, Silver clerked for United States District Judge Kimba Wood. The WSJ article contains an interesting quote from Wood:

According to Wood, Silver showed early in his clerkship “that he was very much his father’s son.” She recalled that when parties would call her chambers with logistical questions, Silver would talk to them about their cases and urge them to settle. “It was a role typically reserved for judges, but I encouraged him to do it because he would get deals done,” she said.

Hmm. I am far from an expert on the subject, and I don’t fault Silver for seizing the opportunity, but from how Wood describes what happened, it seems very similar to the sort of delegation found to be inappropriate in Connelly v. National School Bus Service Inc., 177 F.3d 593, 598-99 (7th Cir. 1999):

We do not know how common it is for a district court to order parties to mediate before a law clerk, but believe the practice to be relatively rare. . . .  [R]egardless of the frequency with which law clerk mediation is undertaken, we believe the practice to be improper. . . .

. . .

. . . [W]e do not believe that Fed.R.Civ.P. 16(a), which gives district court judges the power to conduct pretrial settlement conferences, allows a district court judge to delegate this power to a law clerk. Law clerks serve as judicial adjuncts. Their duties and responsibilities are to assist the judge in his work, not to be the judge. A judge’s law clerk may therefore properly assist the judge in the judge’s settlement efforts, but to allow the clerk rather than the judge to conduct a settlement conference is to confuse the adjunct with the judge.

See generally Parker Potter’s Article Law Clerks Gone Wild, 34 Seattle University L.R. 173 (2010).

I don’t know if norms had changed by the time of my district-court clerkship, but I can tell you that my judge would have shot me out of a cannon before he’d allow me to mediate a settlement conference.

Florida v. Jardines: A Few Thoughts

I don’t write about pending cases a whole lot, at least for purposes other than making fun of them, because what the heck do I know. But I just finished preparing my Criminal Procedure Course Reader for the Fall 2012 Semester (Slogan: “Now With Improved Flowcharts and Hypotheticals! And Free!”), and in the course of doing so, I had to update the citation to Florida v Jardines in the reader’s discussion of canine sniffs. Which got me to thinking about the case, which the Supreme Court will hear in its upcoming October term.

Continue reading Breaking News: Husbands and Wives of Nation’s Constitutional Law Professors Collectively File for Divorce

RENO, NEVADA (Press International), June 25, 2012: The husbands and wives of the nation’s estimated 543 married Constitutional Law professors collectively filed for divorce today in Nevada state court, alleging that their spouses’ complete obsession with the United States Supreme Court’s upcoming ruling on the Affordable Care Act had effectively destroyed their marriages.

“It all started pretty innocuously, with him writing a simple symposium piece on whether early 19th Century precedents could somehow justify the ACA’s individual mandate,” said Marla Thompson, wife of UC-Irvine law professor Farley Thompson. “But then Farley got obsessed–the ACA litigation just took over his life. He told me that we couldn’t eat broccoli for dinner because the vegetable represented a ‘tool’ in the hands of the ‘Lochnerians.’ He would come home and read nothing but ancient admiralty treatises and Whiskey Rebellion conscription notices. He wouldn’t even carpool to work with me, unless I conceded at the outset of each trip that the government could properly demand that I replace our Honda with a Chrysler.”

Spouses of law professors known to oppose the ACA’s mandate voiced similar complaints. “I wish I had never heard of the Hkolov Cabal,” said Lawrence Tribkin, husband of Notre Dame professor Candace Yanders, referring to the law blog that has served as a central forum for anti-ACA commentary. Yanders, formerly known for her well-regarded work on the Nineteenth Amendment, “guest-blogged” on that site during May 2012. There, she revealed what she learned from 720 continuous hours of listening to the March 2012 oral argument on the ACA, as placed on a continuous loop in her office. In her post, Yanders asserted that if one plays the full audio recording of the oral argument backwards, at one point what sounds like Chief Justice John Roberts’ voice can be heard to say either “the ACA is dead,” or perhaps,”thacadad.”

Yanders, who has petitioned to change her name to “Metta World Barnett,” subsequently was committed to a mental institution for treatment.

On the courthouse steps, other petitioners related dysfunctional behaviors by their spouses such as: insisting, for several months running, that they were “this close” to being invited by SCOTUSblog to offer guest commentary on the ACA; repeatedly manipulating dinnertime servings of mashed potatoes into busts of Paul Clement; passing off suppositions about Justice Kennedy’s likely vote on the ACA as “bedtime stories” to young offspring; and otherwise obsessing about absolutely every single aspect of the ACA litigation.

The worst part, many of the spouses said, was the waiting. “I thought that this would all be over by June 18.” said Ron Anders, the husband of Ohio State University’s Thomas Chavez. “But no decision from the Court. Then, maybe earlier today. Again, no decision from the Court. Meanwhile, all Tom does, twenty-four hours a day, is sit in front of his computer hitting ‘refresh’ on the Supreme Court’s website. He hasn’t showered in something like three weeks now. I wish that we could go back to a simpler time, when all we worried about was what movie to go see on Friday, and whether the Second Amendment applied to the states.”

*** Previous news coverage of the ACA litigation can be found here.***

Today’s Auction Item: Thomas Jefferson, Pro Se Plaintiff (1817)

Today’s featured auction item consists of a bunch of court documents from a lawsuit that Thomas Jefferson brought in 1817 against a local canal company.  A press release from Christie’s Auction House summarizes these papers as follows:

“An extensive and fascinating archive of legal documents relating to Thomas Jefferson’s lawsuit against the Rivanna Company is the largest Jefferson manuscript – 72 pages in length – ever to be offered at auction (estimate: $250,000-400,000). Included are a Bill of Complaint addressed to Judge John Brown of the Superior Court of Chancery at Staunton, VA, six transcriptions of court documents, and a draft legislative bill, regarding the Rivanna  Co.”

The listing page for the documents provides some pictures, as well as additional details regarding the lawsuit:

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Today’s Auction Item: Abraham Lincoln, Patent Troll Hunter

As some of you know, I periodically scan the websites of various auction houses for items of interest. Today’s listing takes us back to the 1850s, when Abraham Lincoln, taking a break from vampire-hunting, defended an Illinois businessman in a patent suit.

The featured auction item relates to this case, though it doesn’t immediately concern Lincoln’s involvement. A description of the item (low estimate: $600), taken from its listing at PBA Galleries, follows:

Six Autograph Letters, signed, from the defendant in the legal case that “lifted Lincoln into a Presidential candidate”

To his wife Elizabeth in Rockford, Illinois. The high-stakes lawsuit which reached the Supreme Court as McCormick vs. Wait Talcott, et al, was highlighted in a Lincoln Quarterly of 1946 as “the patent case that lifted Lincoln into a Presidential candidate”. Lincoln was involved at the start, when wealthy industrialist Cyrus McCormick sued Rockford inventor John Manny, alleging violation of his reaping machine patent and asking $400,000 in damages.

Wait Talcott was Manny’s partner and as the suit was filed while Talcott was strongly supporting his friend Lincoln for the US Senate, he probably first convinced Manny to engage Lincoln as courtroom advocate for a two thousand dollar legal retainer – the largest Lincoln had ever received. But after the trial was moved from Chicago to Cincinnati and McCormick hired a former Attorney General of the United States to represent him, Manny and Talcott, facing financial ruin, added more experienced attorneys – Peter Watson and Edwin Stanton – who sidestepped, and then humiliated, Lincoln.

In Cincinnati, catching sight of the gangly, shabbily-dressed country lawyer from Springfield, Stanton called him a “long-armed ape who knows nothing” and refused to allow Lincoln to speak in the courtroom. A “sad and gloomy” Lincoln sat silently through the proceedings until the judges handed down their decision against McCormick, who filed an appeal. Lincoln, deeply insulted, had nothing more to do with the case, even after Manny died and his friend Talcott became the main defendant. He even offered to return the retainer he had received, an offer refused with the only politeness he was shown by his co-counsel.

Still, the case gave Lincoln a new perspective on his strengths and weaknesses in both law and politics – and, incidentally, introduced him to the contentious man who would later become his Secretary of War. When the case came before the Supreme Court, Talcott traveled to Washington for the trial, his first visit to the national capital, which he described in these letters to his wife. Though “embosomed in all the comforts” at the Washington home of rich lawyer Peter Watson, he was wracked by “great anxiety”, knowing that all his family’s “Earthly prospects” hung on the Court’s decision. He sat nervously through the trial as it “dragged on”, one bright moment being the brilliant defense statement of Edwin Stanton, “full of eloquent passages, flashing wit…and of the most overwhelming cogency of argument and sound logic”.

When the trial ended, Talcott hurried back to Illinois. Despite his interest in politics, he had found “nothing in all this glitter and show of the Capital that has half the charms for me of home…However much as there is that is honorable in being called to fill posts of responsibility by our fellow men, no one can be here long and not see that with it comes temptations and remissness in Christian duty that is full of danger….” He concluded, “I may never find myself here again”. Good news finally came in April when the Court dismissed the appeal by McCormick – who was ordered to pay Talcott’s $75,000 in legal fees. Lincoln received only a small fraction of that, but it was enough to give him the financial freedom that year to mount his historic campaign for US Senator against Stephen Douglas, his last stepping-stone to the Presidency. There are numerous sources on this legal case, including published memoirs by the cousin with whom Lincoln stayed in Cincinnati and Talcott’s son-in-law, another co-defendant. These letters, while dated after Lincoln’s involvement had ended, are the only contribution to the historical record by Wait Talcott.

If you think that these letters are too tangentially related to Lincoln to merit your consideration, perhaps you might be interested in this auction item instead. Offered by Bonham’s auction house, and up for sale on June 19, this item consists of of a draft proclamation, authored by Lincoln himself, on the subject of amnesty for those in rebellion.  The estimated price tag?  Only $200,000-$300,000.

Football and Concussions: Irrefutable Counterproof (Walter Camp’s Football (1896))

It seems like everyone’s talking about football and concussions and lawsuits these days. Concerns that football may cause brain injuries and nerve damage are, of course, nothing new. In this vein (hah!), consider this somewhat less-than-definitive study, as related in Walter Camp’s classic 1896 treatise on the sport, Football:

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Possible Injuries to the Nervous System. There is, however, a form of injury to the nervous system which may be occasioned by violent physical or nervous shock; and it is proper that we should look closely at football and determine whether the player is liable to such injury from the severe blow occasioned by the collision of two players, or the violent throwing of a player to the ground. This attitude of the question has been quite carefully examined by Dr. Morton Prince, of Boston, and the result of his investigations is here communicated, under the date of May 8, 1896, as follows: –

I am very glad, in response to your request, to give you the results of my inquiries into possible injuries to the nervous system from football playing. My inquiries have been directed into a special class of injuries. You must know that persons who are subjected to violent concussions, physical and nervous shocks (whether the shock be slight or severe) are liable to suffer from certain nervous accidents which are technically known as traumatic neuroses; they used to be called spinal concussion and “railway spine,” the latter term being derived from the fact that such injuries are very common after railroad accidents. . . .

. . . It occurred to me that if the generally accepted view regarding the exciting cause of these accidents be true, they should be common among football players. . . .

. . . With a view to determining whether such injuries may result from football accidents, I wrote the attending surgeons, or those in charge of the principal football teams of the country, asking whether they had ever known a player to suffer from a traumatic neurosis as a result of a football accident.

All of my correspondents stated that they had never seen any injury of the kind I have described result from football accidents. I may further state that, while I myself have seen a great many injuries of the kind resulting from all sorts of accidents, I have never seen a single case which was due to football playing. From this evidence I think there is little doubt that whatever may result from football playing, traumatic neuroses are not caused by the game.

Yours truly,

Morton Prince, M.D.

This would seem to dispose of the hypothesis that there might be injury to the nervous system from the violence exercises of the game.

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Well, that settles that. I dare you to find any fault or room to quibble with a hey-do-you-remember survey of several clearly unbiased team doctors, and the consistent opinion of a single physician. Of course, more than 300 young men died from football-related injuries between 1890 and 1904. But nerve damage? As Ralph Wiggum would say, unpossible.

I am being a bit unkind here. Morton Prince was, in fact, a very well-regarded physician of that era, and one of the fathers of American psychology. But he was also quite the partisan on the football question; it’s obvious that he loved the sport. When, in 1926, Forum magazine presented a debate framed by the question, “Shall We Abolish Intercollegiate Football?,” Prince–an septuagenarian by that time–argued “no.”

Interestingly, Upton Sinclair advanced the case for abolition in the Forum debate. The caption for article relates, in relevant part, as follows: “YES, says Upton Sinclair, outspoken California radical. Football is simply a means of keeping college students from thinking. It injures the bodies of the players and the minds of everybody.”  I think we can see from this caption why Time magazine once referred to Sinclair as “a man with every gift except humor and silence.”

(Incidentally, if any of you want to peruse diagrams of the various plays that teams could run before the rules permitted forward passes, follow this link to page 350+ of the Camp text.)