Saturday, April 23, 2011

Footnote of the Day: The Satisfaction of Michigan v. Long?

The footnote from the Tennessee Supreme Court seems rather innocuous:

The decision in Middlebrooks was required by Art. I, § 16 of the Tennessee Constitution. We reviewed federal constitutional law in our analysis to determine whether the duplication also violated the Eighth Amendment to the United States Constitution, but Middlebrooks was decided on separate and independent state constitutional grounds. See Middlebrooks, 840 S.W.2d at 346; Zant v. Stephens, 462 U.S. at 877.

State v. Howell, 868 S.W.2d 238, 259 n.7 (1993).  But the footnote is a dramatic one, as Neil Colman McNabe demonstrated in his article, A Rescue From The Jaws Of The Crocodile: The Post-Certiorari Plain Statement Footnote, 59 Albany Law Review 1737 (1996).   Tennessee_Statehood_1946_Issue3c

The Middlebrooks case in the footnote was Middlebrooks v. State, in which the Tennessee Supreme Court vacated Donald Ray Middlebook's death sentence.  The state sought certiorari to the United States Supreme Court, which was granted, oral argument was heard, and then certiorari was dismissed as improvidently granted.  The reason for the dismissal of certiorari was that footnote 7 in Howell, rendered 9 days after the oral argument in Middlebrooks.  The footnote  was deemed to satisfy the rule of Michigan v. Long.  

The Court in Michigan v. Long, 463 U.S. 1032 (1983), enunciated its rule of judicial review for state decisions involving federal constitutional matters: the state court must include a "plain statement" that the decision rests on adequate and independent state grounds.  Otherwise, the Court will assume that the state court decided the way it did because it felt compelled to do so by federal constitutional law.  Interestingly, Michigan v. Long involved the state executive branch attempting to overrule its own state high court by seeking review from the United States Supreme Court.  Many other cases followed a similar pattern, as was the situation in State v. Middlebrooks.

However, as the Sixth Circuit opinion affirming a denial of habeas to Middlebrooks decided in September 2010 makes clear, the dismissal of certiorari did not end the matter.  After the Tennessee Supreme Court vacated the death sentence, "In 1995, a jury again sentenced Middlebrooks to death after finding that the murder was especially heinous, atrocious, or cruel and after weighing the aggravating and mitigating circumstances."   Middlebrooks then raised a number of constitutional claims in state postconviction proceedings, including ineffective assistance of counsel, and in the subsequent habeas petition in federal district court which was denied, and which the Sixth Circuit affirmed.

Meanwhile, Tennessee is one of several states that have turned over their supplies of sodium thiopental, a sedative widely used in lethal injections, to the federal drug enforcement officials because of controversies regarding the drug.

(H/T J. Zak Ritchie)

April 23, 2011 in Courts and Judging, Criminal Procedure, Federalism, Games, Habeas Corpus, Interpretation, Jurisdiction of Federal Courts, Scholarship, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, April 22, 2011

CFP: Terrorism and Criminal Justice

2011 Elon Law Review Symposium Request for Proposals
Call for Articles, Essays, and Requests to Present

October 21, 2011

deadline for proposals: July 1, 2011


At Elon University School of Law, in Greensboro, NC, the law review has announced its symposium and is seeking proposals:

The editors of the Elon Law Review invite article proposals and requests to present from scholars, researchers, practitioners, and professionals on topics relating generally to changes in criminal law since 9/11. The goals of the symposium are: to analyze how the legal landscape has changed due to the increased dedication of policing resources to “the war on terror” and terrorism detection, and to examine the impact of resulting criminal legislation and political focus on terrorism in areas such as the civil rights of suspected terrorists and others, law enforcement tactics, new investigatory practices, and new issues impacting the prosecutorial function. Also, the symposium will look beyond terrorism and discuss the practical legal implications caused by the changes to the political landscape resulting from the 9/11 attacks. Desired substantive areas of interest include, but are not limited to: criminal law, evidence, criminal procedure, civil rights, and legislation.

Please submit proposals of no more than 500 words by attachment to Symposium EditorScott Morgan at by July 1st. All proposals should include the name, title, institutional affiliation, and contact information of the intended author/presenter, and should address matters relating to the legal implications of the 9/11 attacks and the governmental and judicial reaction to that event. Authors are welcome to submit a CV.

The Elon Law Review expects to make offers to speakers and authors by at least August 1st and will cover the participants’ expenses.  Completed articles/essays will be due December 1, 2011 for publication in the Spring 2012 Symposium Edition of the Elon Law Review.



April 22, 2011 in Conferences, Criminal Procedure, Scholarship | Permalink | Comments (0) | TrackBack (0)

Footnote of the Day: Topless Dancing, Alcohol, and the First Amendment

"If topless dancing is entitled to First Amendment protection, it would seem to me that the 399px-Sidecar-cocktail places where it should most appropriately be conducted are places where alcoholic beverages are served. A holding that a state liquor board may prohibit its licensees from allowing such dancing on their premises may therefore be the practical equivalent of a holding that the activity is not protected by the First Amendment."

Footnote 10, in Justice Stevens' dissenting opinion in New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981). 


April 22, 2011 in First Amendment, Games, Sexuality, Speech, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Thursday, April 21, 2011

Footnote of the Day: Bush v. Gore in the Sixth Circuit

The United States Supreme Court has refused to intercede in Hunter v. Hamilton County Board of Elections, the Sixth Circuit opinion we discussed here.  In the word's of the Court's Order:

The application to recall and stay the mandate of the United States Court of Appeals for the Sixth Circuit, case Nos. 10-4481, 11-3059, and 11-3060, presented to Justice Kagan and by her referred to the Court is denied.

This not only permits a recount in the Hamilton County election for Juvenile Court Judge, but also leaves intact footnote 24 from the Sixth Circuit's opinion:

It is also discomforting that Ohio’s rule that all provisional ballots cast in the wrong precinct must be excluded may fall—at least in this instance—unevenly on voters depending on where the Board directs them to vote. In single-precinct polling places there is less room for error than at the multiple precinct locations that have caused so much difficulty in this case. As a result, fewer provisional ballots are likely to be counted in multiple-precinct polling places than in those that serve only a single precinct. This disparate impact might not be of constitutional significance everywhere in Ohio, but here Plaintiffs assert that “the polling places where most of the error-infected provisional ballots were cast are in African- American areas of Hamilton Country.” Plaintiffs 2d Br. at 3. It appears, then, that the exclusionary rule in this case may accrue to the detriment of a protected class.

Political Science Professor Charles Stewart III of MIT has a terrific analysis over at Election Law Blog, Reflections on Footnote 24 of the 6th Circuit Hunter Opinion, with a link to his 9 page paper that contains further discussion.  Indeed, anyone looking for information on the Hunter litigation would do well to consult the Election Law Blog page on the case. 

Hunter-stewart For his part, Stewart argues,

On the whole, the county-level evidence in Ohio for footnote 24 is weak. There is no evidence that counties with more multi-precinct voting locations issue more provisional ballots than those with few consolidated voting locations. The answer to whether counties with more multi-precinct voting locations reject more provisional ballots depends on how you set up the problem — what the denominator is for the rejection rate (all in-person voters or just the number of people issued a provisional ballot) and whether one weights by the number of voters in a county.

 Professor Stewart also "crunches the numbers" and provides some visual representations (see left).  His ultimate conclusion, however, is accessible even to those who might not fully appreciate all the data:

Hard evidence of voter fraud is difficult to come by. Hard evidence of poll worker discretion is easy to come by. If election administration were as data-driven as other areas of public administration, one would think that we would be tackling the problems related to polling place integrity we know to exist.


April 21, 2011 in Current Affairs, Elections and Voting, Equal Protection, Fourteenth Amendment, Fundamental Rights, Games, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 20, 2011

World Justice Project Releases Rule of Law Index

The World Justice Project last week released its first annual Rule of Law Index, a report measuring 35 countries' adherence to the rule of law. 

The Index defines "rule of law" around four "universal principles":

1.  The government and its officials and agents are accountable under the rule of law;

2.  The laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property.

3.  The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.

4.  Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

The Index measures "rule of law" by way of 10 factors (more information on how each is measured in the report):

1.  Limited government powers.

2.  Absence of corruption.

3.  Clear, publicized, and stable laws.

4.  Order and security.

5.  Fundamental rights.

6.  Open government.

7.  Regulatory enforcement.

8.  Access to civil justice.

9.  Effective criminal justice.

10.  Informal justice.

Among 11 countries designated "high income," the United States ranked best (3 out of 11) in open government and worst (11 out of 11) in access to civil justice.  It ranked somewhere in the middle of this group in the other 8 categories.  Other high income countries in the Index include Australia, Austria, Canada, France, Japan, the Netherlands, Singapore, South Korea, Spain, and Sweden.

Agree or disagree with the conclusions, the Index is certainly worth a look.  The World Justice Project put it together based on interviews with over 35,000 people and 900 experts in the 35 countries studied.  There's a good deal of data here, and the Index only promises to improve with future versions.


April 20, 2011 in Comparative Constitutionalism, Fundamental Rights, International, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Footnote of the Day: Express Advocacy's Magic Words

Footnote 52 in Buckley v. Valeo, 424 US 1, 44 (1976) is oft-cited for its "magic words" articulating advocacy 
Vote_For_Horgan in the context of campaign financing:

This construction would restrict the application of § 608(e)(1) to communications containing express words of advocacy of election or defeat, such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," "reject."

As footnote 8 of Justice Stevens' dissenting opinion in Citizens United, explains, "If there was ever any significant uncertainty about what counts as the functionalequivalent of express advocacy, there has been little doubt about what counts as express advocacy since the “magic words” test of Buckley v. Valeo, 424 U. S. 1, 44, n. 52 (1976) (per curiam)."  558 U.S. at ____ (2010), Dissenting Opinion at 11.



For an interesting discussion of the addition of the "magic words" of footnote 52 in Buckley v. Valeo, Professor Richard Hasen's The Untold Drafting History of Buckley v. Valeo, available on ssn, is illuminating.

[image via]

April 20, 2011 in Campaign Finance, Elections and Voting, First Amendment, Games | Permalink | Comments (1) | TrackBack (0)

Tuesday, April 19, 2011

Government Transparency, Efficiency and Plain Language

ConLawProf turned OIRA Administrator Cass Sunstein wrote today on the White House blog how administration efforts to implement the Plain Writing Act of 2010 will "improve communications," "save money," and "facilitate two-way communication between agencies and the public."  Example:

the Federal Communications Commission used to receive so many questions from the public about its requirements for ham radio operations that five full-time employees were needed to provide answers.  After the requirements were written in plain language, questions dropped of so dramatically that all five of those employees could be reassigned to more pressing activity at the Commission.

Sunstein issued final guidance for federal agencies last Wednesday.


April 19, 2011 in News | Permalink | Comments (0) | TrackBack (0)

Footnote of the Day: Imagine

Footnote 2.

The lyrics are as follows:       

“Imagine there's no heaven
It's easy if you try
No hell below us 800px-Imagine
Above us only sky
Imagine all the people
Living for today ...
“Imagine there's no countries
It isn't hard to do
Nothing to kill or die for 
And no religion too
Imagine all the people
Living life in peace ...
“You may say I'm a dreamer
But I'm not the only one
I hope someday you'll join us
And the world will be as one

“Imagine no possessions
I wonder if you can
No need for greed or hunger
A brotherhood of man
Imagine all the people
Sharing all the world ...
“You may say I'm a dreamer
But I'm not the only one
I hope someday you'll join us
And the world will live as one.”

J. Lennon, Imagine, on Imagine (Apple Records 1971).


Because we previously posted this footnote as a "quiz," it seems only fair to do so again.
Name the case and the Justice. 
Hint: It is the opinion for the Court in a United States Supreme Court case.  
Rules: no use of notes, databases, internet or other sources.
Answer: In comments.

April 19, 2011 in Games, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Monday, April 18, 2011

Court Declines to Hear Uighur Case (Again)

The Supreme Court today denied cert. in Kiyemba v. Obama, the case involving the Chinese Muslims held without lawful cause for seven years at Guantanamo Bay.

The petitioners sought release into the United States.  The district court ordered release, but the D.C. Circuit reversed.  The Supreme Court first granted cert. on the question whether a district court may order release into the United States where no other remedy is available. 

But the Court remanded after learning that other remedies were available--that the government offered, and the petitioners rejected, at least two offers of resettlement.  The D.C. Circuit reinstated its original opinion as modified, and the petitioners again sought cert.

The Court today declined to take the case.  Justice Breyer issued a statement, joined by Justices Kennedy, Ginsburg, and Sotomayor, concluding:

the lack of any meaningful challenge as to [the appropriateness of the Government's resettlement offers], and the Government's uncontested commitment to continue to work to resettle petitioners transform petitioners' claim.  Under present circumstances, I see no Government-imposed obstacle to petitioners' timely release and appropriate resettlement.  Accordingly, I join in the Court's denial of certiorari.  Should circumstances materially change, however, petitioners may of course raise their original issue (or related issues) again in the lower courts and in this Court.

(The statement appears at the end of today's order list.)

The denial today ends this chapter (and perhaps the entire book) on the Uighurs' judicial challenges to their confinement at Guantanamo Bay.


April 18, 2011 in Cases and Case Materials, Executive Authority, Foreign Affairs, Habeas Corpus, News, Separation of Powers, War Powers | Permalink | Comments (1) | TrackBack (0)

Standing to Challenge Residency Requirement for Guns

The D.C. Circuit ruled on Friday that a U.S. citizen residing in Canada has standing to challenge the federal law prohibiting a non-resident from buying a gun.

18 U.S.C. Sec. 922(a)(9) makes it unlawful for "any person . . . who does not reside in any State to receive any firearms unless such receipt is for lawful sporting purposes."  The ATF form Firearms Transaction Record Part I--Over the Counter, requires gun purchasers to give their state of residence.  (See Question 13 on the form.)

The plaintiff in the case, Stephen Dearth, alleged that he lives in Canada and no longer maintains a residence in the U.S.  He says that he tried twice to purchase a gun, but was foiled when he could not provide an answer to Question 13.  He sued for declaratory and injunctive relief.

The government argued that Dearth couldn't show a continuing harm: It never denied his application; Dearth didn't claim a right to a "permit" or "license" by the government; and Dearth stated no firm plans to visit the U.S.

The court rejected these arguments.  It held that Dearth's inability to complete the application was harm enough (even if the government didn't ever deny the application), and that Dearth's claim of a right to possess a gun was sufficient (and that there's no requirement that Dearth claim a right to a permit or license).  It also held that Dearth's claims that he intends to visit his friends in the U.S. and to store his guns at his relatives' home in the U.S. satisfied the requirement in Lujan v. Defenders of Wildlife, 504 U.S. at 564, that a prospective injury be sufficiently "actual or imminent" (and not a "some day" intention).


April 18, 2011 in Cases and Case Materials, News, Second Amendment, Standing | Permalink | Comments (0) | TrackBack (0)

Footnote of the Day: Not Worth a Footnote?

The sole footnote in Justice Scalia's opinion concurring in part and concurring in the judgment of Webster v. Reproductive Health Services, 492 U.S. 490 (1989) may not be worthwhile, at least according to Scalia's own assessment within the footnote.  Continuing with our theme of the footnotes for Saturday and Sunday, it involves a disagreement between Justices Scalia and O'Connor.  

O'Connor Scalia In the text of his opinion in Webster, Scalia wrote that "It was an arguable question today whether [the section] of the Missouri law contravened this Court's understanding of Roe v. Wade, * and I would have examined Roe rather than examining the contravention."

 Here is the * footnote:

That question, compared with the question whether we should reconsider and reverse Roe, is hardly worth a footnote, but I think Justice O'Connor answers that incorrectly as well. In Roe v. Wade, 410 U.S. 113, 165-166 (1973), we said that "the physician [has the right] to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention." We have subsequently made clear that it is also a matter of medical judgment when viability (one of those points) is reached. "The time when viability is achieved may vary with each pregnancy, and the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician." Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 64 (1976). Section 188.029 conflicts with the purpose and hence the fair import of this principle because it will sometimes require a physician to perform tests that he would not otherwise have performed to determine whether a fetus is viable. It is therefore a legislative imposition on the judgment of the physician, and one that increases the cost of an abortion.

Justice O'Connor would nevertheless uphold the law because it "does not impose an undue burden on a woman's abortion decision." Ante, at 530. This conclusion is supported by the observation that the required tests impose only a marginal cost on the abortion procedure, far less of an increase than the cost-doubling hospitalization requirement invalidated in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983). See ante, at 530-531. The fact that the challenged regulation is less costly than what we struck down in Akron tells us only that we cannot decide the present case on the basis of that earlier decision. It does not tell us whether the present requirement is an "undue burden," and I know of no basis for determining that this particular burden (or any other for that matter) is "due." One could with equal justification conclude that it is not. To avoid the question of Roe v. Wade's validity, with the attendant costs that this will have for the Court and for the principles of self-governance, on the basis of a standard that offers "no guide but the Court's own discretion," Baldwin v. Missouri, 281 U.S. 586, 595 (1930) (Holmes, J., dissenting), merely adds to the irrationality of what we do today.

Similarly irrational is the new concept that Justice O'Connor introduces into the law in order to achieve her result, the notion of a State's "interest in potential life when viability is possible." Ante, at 528. Since "viability" means the mere possibility (not the certainty) of survivability outside the womb, "possible viability" must mean the possibility of a possibility of survivability outside the womb. Perhaps our next opinion will expand the third trimester into the second even further, by approving state action designed to take account of "the chance of possible viability."



April 18, 2011 in Abortion, Due Process (Substantive), Family, Federalism, Fourteenth Amendment, Games, Gender, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Sunday, April 17, 2011

Footnote of the Day: Disagreements over Tradition in Substantive Due Process

In Michael H. v. Gerald D., 491 U.S. 110 (1989), the Court upheld a statutory presumption that a man married to a woman was the father of any child to which she gave birth.  Justice Scalia wrote the plurality opinion, joined by Justices Rehnquist, O'Connor, and Kennedy.  However, only Justice Rehnquist joined the footnote in which Scalia argued that in order to determine whether a right is fundamental (and thus protected), courts should focus on the most specific level of tradition that can be identified.  In footnote 6, Scalia wrote:

Justice Brennan [dissenting] criticizes our methodology in using historical traditions specifically relating to the rights of an adulterous natural father, rather than inquiring more generally “whether parenthood is an interest that historically has received our attention and protection.” Post, at 2350. There seems to us no basis for the contention that this methodology is “nove[l],” post, at 2351. For example, in Bowers v. Hardwick, 478 U.S. 186 (1986), we noted that at the time the Fourteenth Amendment was ratified all but 5 of the 37 States had criminal sodomy laws, that all 50 of the States had such laws prior to 1961, and that 24 States and the District of Columbia continued to have them; and we concluded from that record, regarding that very specific aspect of sexual conduct, that “to claim that a right to engage in such conduct is ‘deeply rooted in this Nation's history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.” Id., at 194. In Roe v. Wade, 410 U.S. 113 (1973), we spent about a fifth of our opinion negating the proposition that there was a longstanding tradition of laws proscribing abortion. Id. at 129-141.

We do not understand why, having rejected our focus upon the societal tradition regarding the natural father's rights vis-à-vis a child whose mother is married to another man, Justice Brennan would choose to focus instead upon “parenthood.” Why should the relevant category not be even more general-perhaps “family relationships”; or “personal relationships”; or even “emotional attachments in general”? Though the dissent has no basis for the level of generality it would select, we do: We refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified. If, for example, there were no societal tradition, either way, regarding the rights of the natural father of a child adulterously conceived, we would have to consult, and (if possible) reason from, the traditions regarding natural fathers in general. But there is such a more specific tradition, and it unqualifiedly denies protection to such a parent.

One would think that Justice Brennan would appreciate the value of consulting the most specific tradition available, since he acknowledges that “[e]ven if we can agree ... that ‘family’ and ‘parenthood’ are part of the good life, it is absurd to assume that we can agree on the content of those terms and destructive to pretend that we do.” Post, at 2351. Because such general traditions provide such imprecise guidance, they permit judges to dictate rather than discern the society's views. The need, if arbitrary decisionmaking is to be avoided, to adopt the most specific tradition as the point of reference-or at least to announce, as Justice Brennan declines to do, some other criterion for selecting among the innumerable relevant traditions that could be consulted-is well enough exemplified by the fact that in the present case Justice Brennan's opinion and Justice O'Connor's opinion, post, p. 2346, which disapproves this footnote, both appeal to tradition, but on the basis of the tradition they select reach opposite results. Although assuredly having the virtue (if it be that) of leaving judges free to decide as they think best when the unanticipated occurs, a rule of law that binds neither by text nor by any particular, identifiable tradition is no rule of law at all.

 Finally, we may note that this analysis is not inconsistent with the result in cases such as Griswold v. Connecticut, 381 U.S. 479 (1965), or Eisenstadt v. Baird, 405 U.S. 438 (1972). None of those cases acknowledged a longstanding and still extant societal tradition withholding the very right pronounced to be the subject of a liberty interest and then rejected it. Justice Brennan must do so here. In this case, the existence of such a tradition, continuing to the present day, refutes any possible contention that the alleged right is “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934), or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937).

Scalia oconnor For her part, Justice O'Connor, joined by Justice Kennedy, wrote:

I concur in all but footnote 6 of Justice Scalia's opinion. This footnote sketches a mode of historical analysis to be used when identifying liberty interests protected by the Due Process Clause of the Fourteenth Amendment that may be somewhat inconsistent with our past decisions in this area. See Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972). On occasion the Court has characterized relevant traditions protecting asserted rights at levels of generality that might not be “the most specific level” available. Ante, at 2344, n. 6. See Loving v. Virginia, 388 U.S. 1, 12 (1967); Turner v. Safley, 482 U.S. 78, 94 (1987); cf. United States v. Stanley, 483 U.S. 669, 709 (1987) (O'Connor, J., concurring in part and dissenting in part). I would not foreclose the unanticipated by the prior imposition of a single mode of historical analysis. Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting).

The proper role and analysis of "tradition" in substantive due process analysis continues to provoke disagreement more than two decades later.

with J. Zak Ritchie
(and suggested by several ConLawProfs)

April 17, 2011 in Due Process (Substantive), Family, Fundamental Rights, Games, Gender, History, Reproductive Rights, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)