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.




Funny, if True

I recently received my Yale Law alumni magazine in the mail. When I get this semi-annual publication, I usually skip right to the alumni notes, which I enjoy as a reminder of our basic, recurring life patterns and ongoing march toward death, only in reverse order. (I.e., death (alums 45-70 years removed from law school) / retirement (30-45) / children in college (20-30) / promotion to partner, judge, etc. (10-20) / birth of children (5-10) / marriage (3-5) / first jobs (0-3).)

This edition included the following story, related by a member of the class of 1968:

[Another YLS alum] reminds me of a story about a class conducted by the late Robert Bork and Alex Bickel. “The subject was privacy, the right of, and Bork blustered somewhat as follows, ‘Well, supposing I bolster myself for this class my having lunch at Mory’s with my usual three martinis, relieve myself to gird for the ordeal ahead with you, Alex, and these bright young things, but forget to rezip as I begin to focus on our topic of the day. As I stroll along High Street, a photographer from Life magazine with a telephoto lens (yes,  this was long ago) snaps a shot of my fly. Is that an invasion of my privacy?’ Bickel hesitated not a nanosecond before replying, ‘De minimis, Bob, de minimis non curat lex.’ ”

Two observations:

1)      I cannot imagine any professor in his right mind giving anything like this hypothetical today.

2)      Alex Bickel was awesome. Back at Yale, I knew only three things about him. First, he died young. Second, Guido Calabresi thought highly of him. And third, his official law school portrait looked different (being in a more modern style, and having a lighter-hued background) from all of the others on the walls. The portrait made Bickel look a little like James Mason, at about the time of North by Northwest.

Florida v. Jardines, Negative Evidence, and the Dog that Didn’t Bark

I use a course reader for my Criminal Procedure class. Right now, I’m updating the reader for the Fall 2013 semester, which means lots of edits to the author’s text, plus adding a few cases and removing others.

One of the cases I am adding is Florida v. Jardines, the dog-sniff case from the past SCOTUS term. In re-reading Justice Alito’s dissent in Jardines, I thought this passage particularly interesting:

[I]n the entire body of common-law decisions, the Court has not found a single case holding that a visitor to the front door of a home commits a trespass if the visitor is accompanied by a dog on a leash. On the contrary, the common law allowed even unleashed dogs to wander on private property without committing a trespass. [Citations]

The Court responds that “[i]t is not the dog that is the problem, but the behavior that here involved use of the dog.” [Citation.] But where is the support in the law of trespass for this proposition? Dogs’ keen sense of smell has been used in law enforcement for centuries. The antiquity of this practice is evidenced by a Scottish law from 1318 that made it a crime to “disturb a tracking dog or the men coming with it for pursuing thieves or seizing malefactors.” [Citation.] If bringing a tracking dog to the front door of a home constituted a trespass, one would expect at least one case to have arisen during the past 800 years. But the Court has found none.

Those of you who read your Arthur Conan Doyle may recognize this sort of dog-that-didn’t-bark reasoning as similar to the logic employed by Sherlock Holmes in The Silver Blaze, a story in which the detective deduces a culprit’s identity from the fact that a guard dog remained silent in the intruder’s presence.

Holmes’s hunch proved correct. It’s more perilous, however, for judges to rely on “negative evidence,” in the form of a dearth of precedent, as affirmative proof of a point. The above passage from Jardines offers a case-in-point.

Let’s assume that Alito properly perceived what I call a “precedent desert” — a swath of legal territory where no precedent exists, even though the basic ingredients for the generation of precedent have existed for a long time. (Meaning here, that skilled tracking dogs and trespass suits both have been around for many centuries, and there has been no categorical bar on suing for trespass under the described circumstances.)

Alito attributes this precedent desert to a general custom of countenancing, or at least tolerating, the use of tracking dogs on one’s property. But Alito’s is but one of many possible explanations for the absence of precedent on this point. It’s at least as possible that prospective trespass plaintiffs were vexed by the use of tracking dogs on their property, but decided not to bother with trespass suits because they perceived a likely defense verdict, de minimis damages, or actually welcomed the police intrusion, notwithstanding a technical trespass, given the specific facts involved (as might occur if a dangerous fugitive hid, without consent, in the house of another). Or plaintiffs may have brought these trespass cases, but settled them prior to the issuance of any decision by a court. Or these decisions may have gone unpublished. And so on. If any of these latter explanations best accounts for the lack of a historical record, the dearth of caselaw provides little support for the notion of a longtime implied license to bring tracking dogs onto the property of another.

As a more general point, one wonders whether an argument such as Justice Alito’s, premised on the lack of published caselaw addressing a particular point, is ever well-founded. One plausible take on the vitality of these sorts of dog-that-didn’t-bark / no-published-precedent arguments is that they are best directed to situations in which it’s important to know what information jurists or other thought leaders, who might be presumed to stay abreast of published opinions, had before them with regard to a particular topic at a specific moment in time.

Any greater leveraging of a precedent desert, as attempted by the Jardines dissent, tends to be less compelling — both because of the availability of alternative explanations, and the simple fact that lots of the area that lies within the boundaries of the legal “map” remains terra incognita in the sense that there exist no published opinions squarely on point. As every first-year law-firm associate learns (after having a partner utter the awful words, “I know there must be a case on point out there; find it”), even with thousands of case reporters and an ever-growing pool of impossibly deep electronic databases to draw from, there exist many commonplace fact patterns that have generated little or no published precedent.

I sometimes call this phenomenon the “McCormack Effect,” after a student who once asked me in class whether, under common-law premises-liability principles, trick-or-treaters represented invitees, licensees, or trespassers. I drew from generic first principles to offer up some response. Yet, after class ended, I remained curious about what courts had said on this topic, and so I combed Westlaw for case authority. I figured there would be abundant precedent–mischievous trick-or-treaters would seem like brewer’s yeast for tort lawsuits. As it turned out, there was only a case or two even arguably on point.

Legal Questions I Can’t Answer, Volume 2,408,892

I was browsing through old photographs recently. In doing so, I came across this picture I took back in 2008 or 2009 of a Ten Commandments monument, donated by the Fraternal Order of Eagles, located outside of the Lyon County courthouse in Yerington, Nevada:

Is this monument constitutional under Van Orden v. Perry and McCreary County v. ACLU of Kentucky? I have no idea (hey, I don’t teach Constitutional Law), and I don’t know if the photograph, on its own, provides enough information to answer this question. In sum, it looks like this is gonna be a pretty short post.

(*Cough, ahem*)

In any event, below are some other recently unearthed photographs that I took of Nevada towns and ghost towns, eons ago.

Schoolhouse Arch, Metropolis, Nevada

Sagecrest Drive-In, Yerington, Nevada

Subway Station Entrances, Goldfield, Nevada

Ladies’ Chairs, Abandoned Brothel, Nevada

Smokestack, Belmont, Nevada

Fort Churchill Ruins, Nevada 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.***

Plessy, More or Less, Nine Years Earlier (1887)

In last week’s American Legal History class, I asked my students to reverse-engineer the environments that produced two (more or less randomly selected) newspaper front pages, using the stories and advertisements that appear on each.  For example, from an advertisement for canned foods in the March 4, 1870 Janesville (WI) Gazette, one might appreciate the appearance of national markets, the growing divide between the sources and consumers of food, and the possible implications of these changes on domestic roles.

The other paper was the Logansport (IN) Journal, from July 24, 1887.  Along with advertisements for Ivory soap and Carter’s Little Liver Pills, a notice that certain telegraph bigwigs were getting together in New York to shore up prices (hey, the Sherman Act was still three years in the future), and reports on railroad accidents, contract suits, and graft in the award of municipal contracts, there also appeared the following story:


Brought Up Before the Inter-State Commerce Commission

WASHINGTON CITY, July 23–The color line question on railway passenger cars came up conspicuously before the Inter-state commerce commission Saturday in a hearing in the case of the complaint of W.H. Council, the colored preacher of Huntsville, Ala., against the Western & Atlantic Railroad Company, forcibly ejecting him from a passenger coach, called the ladies’ car, and compelling him to ride in a car set apart for colored people.  Council, who is a very intelligent and well-spoken young colored man about 37 years old, was present with two lawyers, John D. Branden and Oscar R. Hundley, to conduct his case, and the railroad company was represented by Julius L. Brown.

The case opened with the reading of Council’s complaint and the railroad company’s answer, after which considerable evidence was put in, and Council, the only witness present, was examined. The comission at the outset ruled out as irrelvant some testimony that the railroad company had taken at Huntsville, Ala., relating to a difficulty which Council is said to have had with the Memphis & Charleston Railroad company.

Council, in his complaint, swears that while seated in a passenger coach, en route from Chattanooga to Atlanta over the Western & Atlantic road, he was approached by a railroad employe, and told to go into a smoking-car set apart for colored people. He refused to comply with this request, unless directed to do so by the conductor; but soon afterward was assaulted by two railroad employes, one of whom struck him several times with a lantern. He was afterward dragged to the smoking-car. All of this, he claims, is in violation of section 3 of the inter-state commerce law, and he therefore claims $25,000 damages for the unreasonable and unjust discrimination against a passenger who held a first-class ticket.

The railroad company in its answer denies that Connell was subjected to this assault by railroad employes; that in entering the car set apart for ladies he was violating the rules of the company, and that in entering that car he intended to disturb the public peace.  The truth is, it is stated in the answer, some gentlemen in the ladies’ car, took the case in their own hands, assaulted Council, and ejected him from the car.  The affidavit of A.L. Moore, a white man, who a passenger in the ladies’ car in company with his mother, at the time of the assault, was read.  Mr. Moore, in his testimony, supports the statement of the colored preacher that he was assaulted with a lantern in the hands of a man dressed in blue, whom he thought was a railroad man.


Though I had not heard about this complaint, apparently the Council matter (in its opinion, the ICC spells the reverend’s last name “Councill”; I’ll use that spelling from here on out) is pretty well-known among the handful of academics who have researched the back-story to Plessy v. Ferguson.  The ICC case is mentioned in a 2008 article in Law and History Review, and Barbara Welke discusses it in her book Recasting American Liberty.  Long story short, the ICC ultimately determined that (1) it lacked jurisdiction to hear Councill’s claim, to the extent it sounded in battery or trespass; (2) the doctrine of separate but equal applied to rail cars; but (3) the facts adduced at the hearing established that the car to which Councill was ordered was not, in fact, equal to the accommodations that were provided to Caucasian rail customers.  So Councill kinda won, and kinda lost.

I’ll close this blog with a few key paragraphs from the ICC order, issued in December 1887 (thanks to David Holt from our library for digging the opinion up for me), which some of you may find of interest.  Before I do, however, I’ll note that I find the media attention toward the matter, as it progressed, to be more intriguing than the Commission’s decision itself. Think about it: How many other ICC hearings received play-by-play coverage in the national news media?

Clearly, the complainant and his two attorneys had a relatively sophisticated litigation strategy at work. The media had to have been tipped off to the matter, to have dedicated such timely coverage to it.  (The piece that ran in the Logansport newspaper was a wire story that ran in many other papers, as well; I’ve seen a version of the same piece in a contemporaneous issue of the Boston Globe.  Also, a follow-up story ran a couple of days later.)   I doubt it was purely by chance that the complainant was a minister.  Some thought obviously was given to the decision to file a complaint with the ICC, just a few months after the agency opened its doors (and thus still defining its own jurisdiction); it also probably didn’t hurt that the ICC was located a thousand miles away from Alabama, and its proceedings didn’t involve a jury (which turned out to be the death knell for Councill’s tort claims–thanks a lot, Seventh Amendment).

One other thing.  I know very little about Councill’s lawyers, but one of them, Hundley, seems to have been a very interesting fellow.  According to his Wikipedia entry (this is a blog; I can cite to Wikipedia and not be the least bit defensive about it. Really. Not one bit defensive. At all. H/T Berke Breathed), Hundley graduated from Vanderbilt’s law school in 1877, and was a member of the Alabama House of Representatives when he represented Councill. Hundley also claimed the Nashville, Chattanooga and St. Louis Railway among his clients; one wonders how he balanced his work for the railway with his representation of Councill. Much later, Hundley was appointed (as a recess appointment) to a federal district judgeship by President Theodore Roosevelt, but was never confirmed.  According to a biography of Booker T. Washington, Hundley’s nomination was withdrawn by President Taft after he (Hundley) “courageously refused to reduce the sentences of men convicted of holding blacks in peonage in the Florida turpentine camps.”  Hundley’s wife apparently matched his talents; there’s a news story online from 1915 that previews her trip around the state of Alabama, campaigning for female suffrage.  I suppose one can see the Hundleys as the Steven Reinhardt and Ramona Ripston of their day, only with Southern accents.

In closing, some of you might be interested in the Commission’s reasoning, in permitting “separate but equal” rail cars nine years prior to Plessy.  Here is an excerpt:

It is both the right and the duty of railroad companies to make such reasonable regulations as will secure order and promote the comfort of their passengers.  . . . The people of the United States, by the votes of their representatives in Congress, support the public schools of the country’s capital city, and here white and colored children are educated in separate schools.  Congress votes public moneys to separate charities; men, black and white, pitch their tents at the base of Washington’s Monument to compete in the arts of war in separate organizations. Trades unions, assemblies, and industrial associations maintain and march in separate organizations of white and colored persons.

Public sentiment, whenever the colored population is large, sanctions and requires this separation of races, and this was recognized by counsel representing both complainant and defendant at the hearing.  We cannot, therefore, say that there is any undue prejudice or unjust preferences in recognizing and acting upon this general sentiment, provided it is done on fair and equal terms. This separation may be carried out on railroad trains without disadvantage to either race and with increased comfort to both.

But the right of the carrier to assign a white man to another car than the ladies’ car, or a colored man to a car for his own race, takes nothing from the right of either to have accommodations substantially equal to those of other passengers paying the same fare. The complainant had paid the same fare with other “first class,” passengers. It was no more than fair dealing and common honesty that he should have the security and conveniences of travel for which his money had been accepted.

This was denied to him. He was told to go, and then forcibly removed to the car assigned to passengers of his race. This was a half car, half lighted, in which men and women were huddled together, and where men, white and black, smoked at pleasure. The defendant’s witness, who testified that he struck the complainant several blows and removed him, designated the car into which he forced complainant a “second class” car; and such it was, being dismal, less clean, and less comfortable than the car in which he was first seated and not permitted to ride. The manner of his removal need not be discussed here, since the alleged assault and trespass is not to be here considered.

There was in the train no car furnishing the accommodations for which the complainant had paid and was entitled to have, other than the one from which he was removed because he was a colored man. In denying to complainant equal accommodations furnished the other passengers paying the same fare the Railroad Company subjected him to undue prejudice and unreasonable disadvantage, in violation of the Act to Regulate Commerce; and these unlawful acts and all unjust discriminations must be discontinued,

The Western & Atlantic Railroad Company will be notified to cease and desist from subjecting colored persons to undue and unreasonable prejudice and disadvantage in violation of section 3 of the Act to Regulate Commerce, and from furnishing to colored persons purchasing first class tickets on its road accommodations which are not equally safe and comfortable with those furnished other first class passengers.

Yick Wo v. Hopkins: Some Background

One of my favorite geek activities involves poring through the old California newspapers that have been posted online at the California Digital Newspaper Collection.  Recently, I searched this collection to learn a little more about the circumstances surrounding the Yick Wo v. Hopkins case.

As background, according to Wikipedia–which strikes me as being as good a source as any for this sort of information–”Yick Wo was the first case where the United States Supreme Court ruled that a law that is race-neutral on its face, but is administered in a prejudicial manner, is an infringement of the Equal Protection Clause in the Fourteenth Amendment to the U.S. Constitution.” The “law” at issue in Yick Wo was, in fact, an 1880 San Francisco ordinance that pertained to laundries. Under the ordinance, persons who wanted to operate these establishments within City limits had to seek permission from the Board of Supervisors, unless their operation was housed within a brick or stone building.  Failure to do so was punishable as a misdemeanor. As this permitting regime played out, Caucasian applicants virtually always received permission to operate laundries, while Chinese applicants invariably had their applications denied by the Board of Supervisors.

The newspapers I read fleshed out the story, at least a little:

  • One thing I learned was that Chinese laundry operators vigorously contested enforcement of the laundry ordinance (and others like it) even prior to the Yick Wo case–and through more than just simple challenges to its constitutionality.  Take, for example, this report from the October 11, 1884 Daily Alta California: “The long pending cases against the Chinese laundrymen have been settled by stipulation, the prosecution agreeing to let the defendants off with fines of $5 each if the Chinamen would consent to stop asking for continuances, jury trials, etc., and taking appeals. The latter consented, and yesterday thirty-one of them walked into Judge Lawler’s court and paid a half-eagle each. About one hundred more will also pay before the close of next week.”
  • I also had not known that, back in 1881, a local judge had condemned the laundry ordinance as unconstitutional – without ever discussing race, or its discriminatory application.  (There were, in fact, many laundry ordinances; the state judge quoted below was attacking the same ordinance as that later found invalid by the United States Supreme Court.)   Judge Freelon of the San Francisco Superior Court held  that “The ordinance . . . is discriminating, oppressive, unreasonable and arbitrary, and gives special privileges to such, and only such as the Board of Supervisors may desire capriciously or in its unrestrained discretion to favor. It is in restraint of trade and it tends directly and necessarily to the creation of monopolies. It does not operate equally and uniformly upon all those coming within the same class or category, and is for that reason unconstitutional. It confers special privileges upon those who have the capital to build, or who have brick or stone buildings. The ordinance also interferes with vested rights. It deprives a class, that is the poor, from following a useful and necessary sanitary pursuit and gives it exclusively to individual and corporate capital. For these and many similar reasons I hold that the ordinance in question is unconstitutional and void.” (Daily Alta California, May 8, 1881)
  • Either Yick Wo, or whoever else paid for his defense, hired a top-flight attorney in Hall McAllister.  McAllister, a prominent San Francisco lawyer, died just a few years after the Yick Wo decision.  In remarking on his passing, one article observed that he was “a great proficient in the art of making things pleasant for others.”  Another noted that McAllister “probably earned more money during his career than any other lawyer in America.”  A very lengthy obituary for McAllister in the December 2, 1888 Daily Alta California concluded as follows: “Throughout his career Hall McAllister was always courteous to those with whom he came into contact. He was generous and kind, and the distressed were never sent away empty-handed. He was a genial and charming companion and the host of friends he made, both in professional and private life, bear witness to the great popularity he won for himself by the combined attributes of his sterling character. One by one the pioneers of California pass away. In the death of Hall McAllister the State loses a foremost citizen, the legal profession a brilliant star; yet the words and deed of him who has passed away will in years to come burn brightly at the shrine of Justice, so that remembrance will be as one requiem song, more enduring than the marble shaft and a fitting crown to a useful life.”