November 25, 2010
Access and the Right to an Interpreter
The Georgia Supreme Court ruled earlier this week in Ling v. State that a criminal defendant who spoke Mandarin Chinese, and not English, "may be effectively incompetent to proceed in a criminal matter and rendered effectively absent at trial if no interpreter is provided." Op. at 2.
The court connected English language skills and meaningful access to the legal system through Drope v. Missouri and mental incompetence. The court explained:
A criminal defendant's "right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings" is guaranteed by the Sixth Amendment and the due process clause of the Fourteenth Amendment to the U.S. Constitution. The due process clause also precludes trial and conviction of an accused while he or she is mentally incompetent. . . . In Drope . . . for example, the U.S. Supreme Court discussed the history of the prohibition against trying mentally incompetent individuals, noting that some have viewed it "as a by-product of the ban against trials in absentia; the mentally incompetent defendant, though physically present in the courtroom, is in reality afforded no opportunity to defend himself. . . . One who is unable to communicate effectively in English and does not receive an interpreter's assistance is no more competent to proceed than an individual who is incompetent due to mental incapacity.
Op. at 5-6. In short: A non-English-speaking criminal defendant is denied access every bit as much as a mentally incompetent defendant, unless the State provides an interpreter. (The court quoted its 2005 case, Ramos v. Terry: "The use of qualified interpreters is necessary to preserve meaningful access to the legal system for persons who speak and understand only languages other than English." Op. at 3.)
The court remanded "to apply the standard in Drope and to state its findings on the record."
Elimination of Violence Against Women Day
In addition to the Thanksgiving holiday in the United States, today is International Day for the Elimination of Violence Against Women as proclaimed by the UN.
The Declaration on the Elimination of Violence Against Women was adopted by the UN General Assembly in 1994. It rests in part on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was signed by President Jimmy Carter but has not been ratified by the Senate.
A recently published and excellent article discussing the current state of CEDAW, including the constitutional issues, is Ann Piccard's U.S. Ratification of CEDAW: From Bad to Worse? available in draft form on ssrn here.
November 23, 2010
Second Circuit Declares Vermont Pharma Anti-Datamining and Detailing Statute Unconstitutional
Reversing the district judge, a divided panel of the Second Circuit has declared unconstitutional Vermont's prohibition of the sale and use of prescriber-identifiable data. In its opinion in IMS v. Sorrell today, the panel majority found that the Vermont statute, Act 80, section 17, codified at title 18 section 4631, violates the First Amendment. The decision essentially disagrees (although attempts to distinguish) two First Circuit decisions: an opinion upholding a similar statute from Maine and an opinion upholding a similar statute from New Hampshire.
The court described the statute as prohibiting pharmaceutical manufacturers from using prescriber-identified (PI) data regarding prescriptions written and dispensed in Vermont in their marketing efforts and thus interfering with the manufacturers’ ability to promote brand-name drugs to doctors through detailing, for example, by making it harder to identify those physicians for whom the message will be most relevant and to tailor the detailing messages based on individual physicians’ prescribing histories. As to the other type of plaintiffs, data mining companies, the court described the statute as prohibiting data miners from selling or transmitting PI data regarding prescriptions written and dispensed in Vermont if that PI data will later be used for marketing purposes. The court noted that data miners "do not themselves use PI data in their own marketing efforts. Rather, data miners are in the business of aggregating and selling the data to pharmaceutical manufacturers, among other entities, so that pharmaceutical manufacturers can use the data in their marketing strategies."
The majority found that Vermont statute regulates speech, and that the speech is commercial speech, and therefore articulated and applied the well-established (if often maligned) test from the 1980 case of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York:
Under Central Hudson, the government may regulate commercial speech when (1) “the communication is neither misleading nor related to unlawful activity;” (2) the government “assert[s] a substantial interest to be achieved” by the regulation; (3) the restriction “must directly advance the state interest;” and finally (4) “if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.
The majority concludes that the statute fails three of the prongs of Central Hudson, including the assertion of a substantial government interest. In a relatively rare occurrence under Central Hudson applications, the majority concludes that "the state’s asserted interest in medical privacy is too speculative to qualify as a substantial state interest" under the second prong of Central Hudson:
Vermont has not shown any effect on the integrity of the prescribing process or the trust patients have in their doctors from the use of PI data in marketing. Vermont’s own expert was unaware of any instance in which a detailing interaction caused a doctor to prescribe an inappropriate medication. To the extent that the record might suggest PI data has damaged the relationship between doctors and patients, the evidence is either speculative or merely indicates that some doctors do not approve of detailing or the use of PI data in detailing.
Given this conclusion, it is not surprising that the majority finds that the restriction does not advance the state interest or could be served by a more limited restriction.
In a robust dissent, Second Circuit Judge Livingston first emphasizes that the restriction is on access to otherwise private information rather than commercial speech: : "I have some difficulty comparing the data they sell to “discourse” or the “exchange of ideas,"" and noting that the First Circuit concluded that PI was "just a product, not distinguishable from the data miners’ perspective to widgets, or, as the First Circuit suggested, “beef jerky.”" The dissenting judge did, however, also apply Central Hudson and reached a different conclusion on each of the three prongs at issue. Most trenchantly, Judge Livingston compares the majority's discussion of the indirect route traveled between the state's interest and its effects, to the indirect route traveled by the majority's own reasoning. Additionally, she discussed the dormant commerce clause argument, an issue the majority did not reach in light of its holding that the statute was unconstitutional on First Amendment grounds.
Mayeri on Fronterio
Serena Mayeri's article, "When the Trouble Started": The Story of Frontiero v. Richardson, available on ssrn, provides an important perspective on the military as the "Don't Ask, Don't Tell" policy continues to make news.
Mayeri tells the story of Sharron Frontiero, a 23 year old U.S. Air Force lieutenant in 1969, who at first believes her failure to receive the spousal allowance for her new husband was a mistake. Mayeri interweaves Frontoero's personal circumstance with the litigation and doctrine. She demonstrates that "Frontiero’s legacy extends beyond the intricacies of standards of review, the constitutionality of government benefits schemes, women’s status in the armed forces, and the career of the race-sex analogy." As Mayeri admits, "Frontiero left a mixed legacy for military equality."
ConLawProfs will enjoy this article for the depth it adds to teaching the material and as well as providing a perspective on present controversies.
November 22, 2010
D.C. Circuit on Prolonged GPS Surveillance
A sharply divided D.C. Circuit voted to deny en banc review on Friday of a panel ruling that the government's prolonged, warrantless surveillance of an individual by GPS attached to his car was an unreasonable search in violation of the Fourth Amendment.
The three-judge panel earlier ruled in U.S. v. Maynard that the government's use of a GPS device attached to appellant Jones's car, without warrant, and used to track his movements 24-hours-a-day for four weeks violated Jones's Fourth Amendment rights. The panel distinguished U.S. v. Knotts, in which the Supreme Court held that the government's warrantless use of a beeper device to track Knotts to his secluded cabin was not a Fourth Amendment search:
The Court explicitly distinguished between the limited information discovered by use of the beeper--movements during a discrete journey--and more comprehensive or sustained monitoring of the sort at issue in this case. . . .
In short, Knotts held only that "[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another, not that such a person has no reasonable expectation of privacy in his movements whatsoever, world without end, as the Government would have it.
Op. at 17, 19.
Chief Judge Sentelle, joined by Judges Henderson, Brown, and Kavanaugh dissented from the decision denying rehearing en banc. They argued that the case is squarely governed by Knotts and that the panel ruling puts the D.C. Circuit at odds with the Seventh Circuit in U.S. v. Garcia, the Eighth Circuit in Marquez, and the Ninth Circuit in U.S. v. Pineda-Moreno (dissents on the denial of en banc review are here). (The panel held that the appellants in Pineda-Moreno and Garcia did not argue the issue and that Marquez addressed the issue only vaguely, and in an alternative holding.)
November 21, 2010
Judge Kimba Wood on gender equality
Federal District Judge Kimba Wood of the Southern District of New York responded to an attorney's jaunty request for a possible day off from trial - - - should his grandchild be born a boy - - - with an equally jaunty order that attempts to "balance the scales" should the child be a girl.
(h/t Laura Nixon)