Bad Glacier

I sometimes amuse myself while reading by imagining what the judges would say if they didn’t have to worry about little things like the reputation of the judiciary and having respect for the parties. Here’s an example, from Chambers v. Maroney, 399 U.S. 42:

Frank Chambers was convicted of two robberies, based partly on evidence the police found during a search of the car he was riding in. He challenged the admission of this evidence, and the case went all the way to the Supreme Court. After holding that the warrantless search of the car was constitutional because the police has probable cause, Justice White starts to feel bad for Chambers. Poor guy just had his appeal crushed. He probably feels real down-in-the-dumps right now. “Hey man,” White wants to say, “buck up. Things aren’t that bad. You just have to look on the bright side!” He then demonstrates. After stating that there’s no real difference between searching the car at the time of the arrest and driving it to the police station first, Justice White notes that the police were actually doing the owner a favor:

All occupants in the car were arrested in the dark parking lot in the middle of the night. A careful search at that point was impractical and perhaps not safe for the officers, and it would serve the owner’s convenience and the safety of his car to have the vehicle and the keys together at the station house.

“See, you don’t have to catch a ride back to your car now!” White doesn’t say. “Well, I guess that’s because you’re going to jail, but if you weren’t, you’d really be happy now. When I was young, we had to walk uphill through a blizzard to get back to our cars after we were convicted of robbery with evidence found during a warrantless search. You should thank the police for being so considerate.”

“Kids these days. They take everything for granted.”

“I concur,” says Justice Stewart. “It’s that ‘rock and roll’ music they’re all listening to nowadays. Turns their minds into mush. I miss The Big Bopper.”

Justice Harlan chimes in: “Stewart, you’re such a square. Not all rock music is the devil’s work. That Les Zeppelin fellow, for instance, is quite the guitar whiz. ‘Lots of people talk, but few of them know, the soul of a woman was created belooooww. . . Waaah-aaah, waaaahh-ahh [with the required air-guitar and Robert Plant hip-thrusting] . . .’”

“. . .” says Justice Blackmun, who took no part in the consideration or decision of this case.

I’m not much of a link-and-comment blogger, but I’ll pretend tonight.

Over at the Volokh Conspiracy, David Bernstein is not happy. Specifically, he’s not a fan of civil juries, which we all know “serve as a completely lawless element that wreaks havoc with the rule of law.” They come up with “ridiculous civil jury verdict[s]” and it’s no wonder they “have been abolished just about . . . everywhere but the U.S.”

What brought this on, you ask? Well, one particular band of unprincipled brigands “blatantly disregarded the law (and common sense)” and “held that the Port Authority of New York was 68% responsible for the (first) bombing of the World Trade Center,” in order to “ensure that the PA would be found more than 51% responsible, and thus, under comparative negligence rules, would have to pay.”

Now, I’m confused. There are a lot of ridiculous things about that case (more than I know, I’m sure), and the verdict is probably one of them, but before I blame everything on the jury system, I would reconsider the rule that someone who is less than 51% responsible isn’t liable for damages. If juries think the law is so unfair they are willing to fudge numbers (which are somewhat arbitrary to begin with) to get around it, I would suppose the problem to be with contributory negligence, not with the juries.

Can someone explain to me either the reason why I should be calling for the foreman’s head on a stake or the logic behind the 51% rule? I mean, aren’t juries supposed to be one of the democratic elements in law, keeping verdicts in line with public opinion and all that? I assume the reason for the contributory negligence rule is something like, “only the party most responsible for damage should be liable for it,” but that doesn’t sound persuasive to me. The issue of who should pay and how much is a hard one, but this can’t be the best solution we’ve come up with.

I’m sure we’ve all thought to ourselves, at one time or another, “I should be paid more for this work.” The lawyers for the plaintiffs in City of Riverside v. Rivera certainly have. After winning their case against the city, the plaintiffs asked for attorneys’ fees and “a multiplier . . . to reflect the contingent nature of their success and the high quality of their attorneys’ efforts.”

This is awesome. I’m just imagining the lawyers celebrating in a bar after the verdict:

“We won! We actually won!”

“Hell yeah! We beat the pants off them. That brief was spectacular.”

“And your closing argument–just brilliant! Hey bartender, another round!”

“Damn, we’re good.”

“Damn straight, we are. In fact, we’re so good, they should pay us double!”

“Triple!”

“Wait, I have an idea. Gimme a pencil. [mumbling] Multiplier… high quality efforts… contingent nature of success…”

In the end, the court rejected their claim. Twice, actually. But hey, it was worth a shot.

Holy crap, I actually understand this! (Link to a SCOTUSblog summary of Schaffer v. Weast, a case having to do with the burden of proof in an administrative due process hearing. Warning: my Civil Procedure class just finished up a section on due process. You might not find this nearly as interesting as I did.)

This law school thing must be working!

The Legal Theory Lexicon is a site I’ve been browsing through for a while now. Every week, Lawrence Solum takes a term from legal theory (the site is associated with the Legal Theory Blog) and summarizes it at an easy-to-understand level. Interesting stuff, and I would recommend it to any other 0Ls out there if they’ve ever wondered about the rule of law, originalism, textualism, or any of the other 40-some entries.

While everyone else is talking about the Supreme Court’s decision in Kelo, I’m just gonna slip in with something else. In Halbert v. Michigan, another decision released yesterday, the Court decided, 6-3, that a person who pleaded guilty to a crime and is seeking leave to appeal must be appointed a lawyer if he cannot afford one. Halbert v. Michigan is a second-tier case. There weren’t many people holding their breath for this one. But dammit, I did a lot of reading on this issue last year, and I’m not about to let that go to waste!

In 1994, Michigan amended its Constitution to allow appeals, in cases where an accused criminal plead guilty in the first trial, only by leave of the court. These defendants would have to apply for leave to appeal to Michigan’s Court of Appeals. That doesn’t sound bad, right? But Michigan also has a law limiting the circumstances in which indigent (poor) plea-convicted defendants can be appointed counsel for their application for leave to appeal, and this is where the problems come in…

But don’t defendants have a right to appointed counsel for their first appeal? Well, yeah, sort of. Douglas v. California says that prisoners have a right to appointed counsel when they have a right to a first appeal. (Interestingly, it seems that Douglas v. California was also overshadowed when it came out, as it was decided the same day as Gideon v. Wainwright, the case that everyone (well, the subset of everyone who cares about this kind of thing) associates with appointed counsel.) The other major precedent here is Ross v. Moffitt, which established that counsel did not need to be appointed for second-tier, discretionary appeals, such as appeals to the highest state court or the Supreme Court itself.

The issue concerning the Court here is determining which precedent is most applicable to this situation. Halbert, a defendant denied the right of counsel, claims that Douglas requires that counsel be appointed to assist with the application for leave to appeal, while Michigan argues that this is a discretionary appeal, similar to the appeal to a state supreme court, where Ross held that appointed counsel is not required.

Why do I know any of this? I looked at Kowalski v. Tesmer, a case raising the same issue, for a political science class last year. At the time, the Court failed to reach the merits of the case because the attorneys bringing the case did not have standing to challenge the statute on behalf of the indigent defendants being denied counsel. Admittedly, though, the petitioners had a tough case to make. They had to show that there was a substantial hindrance to a prisoner’s ability to assert his own rights, when the respondents could simply point to Halbert, already scheduled for conference, and say, “Well, he did it.” So that case wasn’t really that tough. But back to yesterday’s decision in Halbert…

The majority opinion, written by Justice Ginsberg, held that this case was more similar to Douglas’s first-tier appeals of right and that failure to provide an attorney to those who cannot afford one violates the Constitution. The Court gave two major reasons for their decision: first, the Michigan court’s decision on the prisoner’s petition for leave to appeal is decided on the merits of the case. Michigan’s Court of Appeals functions as error-correction by evaluating each appeal on the substance of its claim, where the State Supreme Court in Ross took cases not to correct the mistakes of lower courts, but to decide issues of public interest or settle important legal points. Second, in most cases, this is the only review the prisoner would get, and without an appellate attorney, he is at an unconstitutional disadvantage. In Ross, the appellants already had the benefit of an attorney for their first-tier appeal, and so they could use the materials from this appeal to make their case to the high court. Here, defendants–often learning impaired or illiterate–do not have the use of a brief prepared for a court of appeals. They have to navigate the complicated appellate system working only from the trial transcript and materials prepared for their first trial.

Justice Thomas’s dissent, joined by Chief Justice Rehnquist and Justice Scalia, argues that Michigan has set up a system of discretionary appeals, and so Ross should apply. He also argues that even if Halbert had a right to an appellate attorney, he waived that right when he entered his plea. Justice Ginsberg addresses this point at the end of her opinion, saying that Michigan law did not recognize that right, so Halbert could not waive it, and even if he could, he did not do so knowingly and intelligently.

And that’s pretty much it for Halbert v. Michigan. Wasn’t that fun? (Don’t answer that.)

In case anyone hasn’t heard, Ashcroft v. Raich, the medicinal marijuana case, was decided today. The vote ended up being 6-3 in favor of the government, with Justice Stevens writing the majority opinion, Justice Scalia concurring in the judgment, and Justice O’Connor, Justice Thomas, and Chief Justice Rehnquist dissenting.

I don’t know much about the legal aspects of the case (I guess it came down to what counts as interstate commerce), but it seems like it was a struggle between States’ rights and “moral values.” It’ll be interesting to see how people respond to this, I think.

Maybe I’ll write more if I get around to reading the opinions.

Update: SCOTUSblog has links to all the opinions here.

The Supreme Court, by William Rehnquist (yeah, the Chief Justice!)

This book calls itself a history of the Supreme Court, but that’s not quite right. There is a good amount of history in the book, but it’s only one of three main topics covered. The Chief Justice only discusses the Court from Chief Justice Marshall (early 1800s) through the Warren Court (late 1960s) to avoid cases he worked on as a Justice, but he also writes about his experience clerking for Justice Jackson and spends several chapters describing the inner workings of the Court. So it’s not really a history, not really a memoir, and not really an insider’s account of the Court, but it has elements of all these.

The book uses influential Justices and important cases to show how the Court, despite its missteps along the way, has managed to take and retain its place as a full-fledged branch of government, despite repeated attempts by the other branches to control or intimidate the Court. Rehnquist’s writing is clear and interesting. Throughout the book, the Chief Justice aims the discussion of cases at the “interested, informed layman,” so it isn’t difficult to keep up.

The chapters discussing his clerkship talk a lot about the decision-making process and the personalities of the Justices on the Court at the time, but they have a different feel from the rest of the book. You feel like you learn something about Rehnquist’s personality as you read them, unlike the more objective historical chapters. This same split occurs when he describes the working of the current Court. At some points, he talks about the process he uses to come to a decision and write an opinion, and at other points he just dryly reports the days and times the Court considers certiorari petitions. It’s inevitable, I guess; the personal part of the book is not large enough to be published on its own, and it would be tough to reach the book’s intended audience without including some personality along with the historical parts.

As it is, the book is a good one for future law students. It exposes you, on a fairly shallow level, to some important cases and keeps your attention with the opinions, anecdotes, and observations of the current Chief Justice.

Next up: The Brethren, as recommended by chicken magazine

On the eve of my visit to Michigan, I checked out Left2Right and find this nice little piece from Professor Don Herzog reminding me of why I’m so excited about this trip.

Cool.

I just finished reading The Center Holds, by James F. Simon. It’s a look at the Rehnquist Court and how it hasn’t been able to fully realize the goals of Rehnquist, Reagan, Bush (the first), and other conservatives. The book is divided up into sections on race, abortion, criminal cases, and First Amendment law, and in each, Simon describes how Rehnquist was, time after time, unable to pull together a majority of the Court for his most desired postion. The centrist Justices end up carving out narrow exceptions and retaining liberal precedents, rather than overturning decisions and offering sweeping opinions, as the ultra-conservatives seem to want.

In each section, Simon looks at several cases, using drafts of opinions, oral arguments, and conference notes from several retired Justices to examine the process by which the Court arrived at a certain opinion, while working short biographies of the Justices in with the cases to keep things interesting. The legal terms are all well-explained and discussion seems to be aimed at laymen (nothing seemed too confusing to me).

It’s about ten years old, so it’s not quite up to date, but it’s incredibly interesting stuff. I think my Supreme Court obsession is alive and growing.

I finally got around to reading the Ninth Circuit’s decision in MGM v. Grokster (pdf file here). It’s not long and fairly straightforward, but here’s my short summary anyways. A longer summary is “below the fold”, as they say “in the biz”, as they say… well… no one actually says that.

Short version: Unlike Napster, which used its own servers to keep track of users and to store lists of the files being shared, Grokster and StreamCast don’t have the ability to block users or to monitor the files being traded on their networks. Because of this, they cannot be held contributorily or vicariously liable for copyright infringement by users of their software. The court then tells MGM to stop crying or the court will give them something to cry about.

Long version below:
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MGM v. Grokster, which determines if the makers of P2P file sharing programs will be held liable for copyright infringement that occurs on their networks, will be argued before the Supreme Court on March 29. Needless to say, this is something I’m really interested in. The case doesn’t seem too terribly complicated, so I’m hoping this is something I can work my way through without making an ass out of myself. I mean, I was gonna read all this stuff anyways, so I might as well blog about it too.

This probably won’t be interesting to any of you, but if I happen to be wrong, feel free to join in the nerdity!

Since I’m not even a law student yet, I won’t try to say anything insightful about the case. For now, I’ll just link and summarize (hopefully without too many glaring mistakes).

Basically, a bunch of motion picture studios and record companies (among others) sued Grokster (and Streamcast, but we’ll just ignore them), saying Grokster was liable for the copyright infringement of its users. The district court found for Grokster and the Ninth Circuit affirmed (those crazy west-coasters!), finding that because the file sharing software has substantial non-infringing uses, it falls under the control of the Sony-Betamax case and Grokster is not liable. The Supreme Court granted certiorari, and here we are.

(links below)

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