April 30, 2011
Footnote of the Day: Are Footnotes Necessary?
Our April series of footnotes ends today with the well rehearsed debate about their necessity. Justice Breyer eschews footnotes in his opinions. In the rather famous 1985 essay from then-Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit, he decried the use of footnotes: “I consider footnotes in judicial opinions an abomination."
I hate to read footnotes. I always lose my place in the text and miss the train of thought the author is trying to get me on. But I am afraid that the footnote I fail to read is the key to the whole thing, and so I sneak a peek at some, but not all (I always read footnotes numbered 4). I feel very guilty about the ones that I skip over. In my early days on Law Review I was told that the footnotes are the real measure of worth in legal writing. Intellectually, I do not believe it, but then I think of all the footnotes that law students and lawyers and judges have written since the beginnings of law. (Not quite the beginnings: there is not a single footnote to the original version of the Ten Commandments.) Can all those exemplars be wrong?
I think they are. 
His footnote four? It is not that most famous footnote four, but a challenge to the reader: "Just what did you expect to find?" Abner Mikva, Goodbye to Footnotes, 56 U. Colo. L. Rev. 647 (1985).
There are no footnotes 1, 2, or 3 in Mikva's article, but there is the biographical footnote. For a discussion of the conventions of this footnote practice in legal scholarship, Charles Sullivan's, The Under-Theorized Asterisk Footnote, 93 Georgetown Law Journal 1093 (2005), available on ssrn, is worth a look.
And also worth a look is the defense of footnotes by then-Judge Edward Becker, In Praise of Footnotes, 74 Wash. U. L.Q. 1 (1996):
I, however, refuse to give up footnoting. In fact, I do not consider it a vice. As a federal judge for a quarter century, I believe in footnotes and am convinced that the judicious use of footnotes allows judges to communicate most effectively with their diverse audiences. . . . the footnotephobes seem to have missed the essential point that judges are professional writers and that well-conceived and well-crafted footnotes are valuable tools of their trade. Because the time seems ripe for a dissenting statement, I write to praise footnotes, rather than to bury them.
April 29, 2011
President Blocks U.S. Property of Human Rights Abusers in Syria
President Obama today issued an Executive Order blocking U.S.-based property of certain persons and entities responsible for human rights abuses in Syria.
The EO cites as authority the Constitution, the International Emergency Economic Powers Act (IEEPA) and the National Emergencies Act. It expands the national emergency declared in EO 13338 (May 11, 2004), and relied upon for additional steps taken in EO 13399 (April 25, 2006) and EO 13460 (February 13, 2008), finding that the Syrian Government's human rights abuses "constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States . . . ."
The EO also prohibits donations to persons and entities whose property is blocked under the Order and prohibits transactions or conspiracies to violate the Order.
Section 7 of the Order implements the freeze without prior notice to those in the U.S. whose property is covered. The stated purpose is to capture the property before the owner can transfer it electronically:
For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render those measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in Executive Order 13338 and expanded in this order, there need be no prior notice of a listing or determination made pursuant to section 1 of this order [which authorizes the blockage of covered property].
The EO also lists three current and former Syrian Government officials by name and two entities by name.
Footnote of the Day: Marriage in the Colonies
Apropos of today's "royal wedding" in Great Britain, the Court in Loving v. Virginia (1967) offered a footnote explaining marital practices in a former colony. In footnote 4, the Court first quoted the Virginia miscegenation statute at issue in Loving:
Intermarriage prohibited; meaning of term "white persons." -- It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this chapter, the term "white person" shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this chapter.
Va.Code Ann. § 20-54 (1960 Repl. Vol.).
The Court then continued:
The exception for persons with less than one-sixteenth "of the blood of the American Indian" is apparently accounted for, in the words of a tract issued by the Registrar of the State Bureau of Vital Statistics, by "the desire of all to recognize as an integral and honored part of the white race the descendants of John Rolfe and Pocathontas. . . ." [citations omitted].
Loving v. Virginia, 388 U.S. 1, 5 n.4 (1967).
[image: statute of Pocahontas at Jamestown, Virginia, via]
April 28, 2011
Footnote of the Day: Statements of Judicial Nominees or Candidates
In footnote 4 of her dissenting opinion in the 5-4 decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), declaring unconstitutional an ethical prohibition on judicial candidates announcing their opinions, Justice Ginsburg wrote:
The author of the Court’s opinion [in the present case of Republican Party of Minnesota v. White] declined on precisely these grounds to tell the Senate whether he would overrule a particular case:
‘‘Let us assume that I have people arguing before me to do it or not to do it. I think it is quite a thing to be arguing to somebody who you know has made a representation in the course of his confirmation hearings, and that is, by way of condition to his being confirmed, that he will do this or do that. I think I would be in a very bad position to adjudicate the case without being accused of having a less than impartial view of the matter.’’
13 R. Mersky & J. Jacobstein, The Supreme Court of the United States: Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee, 1916–1986, p. 131 (1989) (hearings before the Senate Judiciary Committee on the nomination of then-Judge Scalia).
April 27, 2011
First Amendment and Legislative Voting
The Supreme Court on Wednesday heard oral arguments in Nevada Commission on Ethics v. Carrigan, the case testing whether a state ethics law that restricts a city council member's vote on a matter violates the First Amendment.
The Nevada law at issue prohibits a public officer from voting on or otherwise advocating the passage or failure of a matter in which the "independence of judgment of a reasonable person" in that situation would be affected by "[h]is commitment in a private capacity to the interests of others." The law defines that "commitment" to include close familial and business relationships and "[a]ny other commitment or relationship that is substantially similar to a commitment or relationship described in this subsection."
That last clause was at issue in the case.
The Nevada Supreme Court ruled that a public officer's vote was "speech," it applied strict scrutiny, and it ruled that the provision violated the First Amendment.
Arguments on Wednesday focused around two principal points. First, Justices were keenly interested in whether a legislative vote was covered by the First Amendment at all. Justice Scalia put the point most sharply early in the argument when he brought the discussion back to this threshold issue. Petitioner's counsel answered that the law here did not implicate the First Amendment and that it satisfied the viewpoint-neutrality requirement in R.A.V. v. City of St. Paul. But this answer only raised a chorus from Chief Justice Roberts and Justices Scalia, Breyer, and Kagan that if the First Amendment doesn't apply, R.A.V. isn't particularly helpful. (Justice Kagan: "If this is just conduct, if this is not proscribable speech of the kind that R.A.V. was talking about, why should we care about the viewpoint based doctrine that's arisen in First Amendment law.) Counsel seemed to confuse two distinct arguments--one that the vote isn't even speech (of any sort, protected or not), and one that even if it is speech the law is viewpoint neutral. The significant time spent on this point probably won't help the Court much at all.
But still there was some sympathy--even a lot of sympathy--on the bench for the idea that a legislative vote isn't First Amendment speech. Thus a good deal of the respondent's time was spent answering questions about just how far the First Amendment might intrude upon well established ethics restrictions on legislative and even judicial action. Chief Justice Roberts asked respondent's counsel, "So if the legislature adopts a rule that says from now on we're going to require a four-fifths majority for a bill to pass, that lowers the effectiveness of the speech of someone in the minority, and you can challenge that on First Amendment grounds?" Answer: No. Justice Scalia similarly asked about ethical rules that required recusal for judges. Again, counsel said that the First Amendment imposes no bar. But counsel didn't offer an entirely satisfying boundary for his position that the First Amendment prohibits Nevada's restriction, but not those restrictions.
And thus the second principal theme of the arguments: vagueness doctrine. The Court, again led by Justice Scalia, pressed hard on the vagueness point, suggesting that the clause at issue isn't at all clear to a reasonable person. But does the vagueness doctrine apply if the vote isn't even First Amendment speech? Answer by respondent's counsel: Yes. Here, Chief Justice Roberts offered perhaps the cleanest resolution to the case:
CJ Roberts: Is your vagueness argument, is that a First Amendment argument of its own?
Mr. Rosenkranz: It is a baseline vagueness argument on due process grounds, but it gets elevated because of the First Amendment interest.
CJ Roberts: So we can decide your vagueness--if we agree with you on vagueness, we don't have to determine whether the First Amendment applies in this type of situation?
Mr. Rosenkranz: Oh, that is correct, Your Honor, absolutely.
This may just be the key to the case: If vagueness doctrine would apply here (outside the First Amendment, and outside the criminal context, two areas where it typically applies), it could allow the Court to dodge the harder First Amendment questions and still overturn a law that by the end of the argument seemed anything but determinate, even to the Court, much less to a "reasonable person."
Questions also addressed the associational rights that might be chilled by the provision--the association between, e.g., a candidate and certain campaign workers that might fall into the provision and thus prevent the future public official from voting on a matter--and on the accompanying prohibition on advocacy for the passage or failure of a measure. The Nevada Supreme Court did not rule on these points, though, and it's not at all clear that the Court needs to (or wants to).
Footnote of the Day: Colonial Criminal Sodomy Statutes
Footnote 5 provides:
Criminal sodomy laws in effect in 1791:
Connecticut: 1 Public Statute Laws of the State of Connecticut, 1808, Title LXVI, ch. 1, § 2 (rev. 1672).
Delaware: 1 Laws of the State of Delaware, 1797, ch. 22, § 5 (passed 1719).
Georgia had no criminal sodomy statute until 1816, but sodomy was a crime at common law, and the General Assembly adopted the common law of England as the law of Georgia in 1784. The First Laws of the State of Georgia, pt. 1, p. 290 (1981).
Maryland had no criminal sodomy statute in 1791. Maryland's Declaration of Rights, passed in 1776, however, stated that "the inhabitants of Maryland are entitled to the common law of England," and sodomy was a crime at common law. 4 W. Swindler, Sources and Documents of United States Constitutions 372 (1975).
Massachusetts: Acts and Laws passed by the General Court of Massachusetts, ch. 14, Act of Mar. 3, 1785.
New Hampshire passed its first sodomy statute in 1718. Acts and Laws of New Hampshire 1680-1726, p. 141 (1978).
Sodomy was a crime at common law in New Jersey at the time of the ratification of the Bill of Rights. The State enacted its first criminal sodomy law five years later. Acts of the Twentieth General Assembly, Mar. 18, 1796, ch. DC, § 7.
New York: Laws of New York, ch. 21 (passed 1787).
At the time of ratification of the Bill of Rights, North Carolina had adopted the English statute of Henry VIII outlawing sodomy. See Collection of the Statutes of the Parliament of England in Force in the State of North Carolina, ch. 17, p. 314 (Martin ed. 1792).
Pennsylvania: Laws of the Fourteenth General Assembly of the Commonwealth of Pennsylvania, ch. CLIV, § 2 (passed 1790).
Rhode Island passed its first sodomy law in 1662. The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations 1647-1719, p. 142 (1977).
South Carolina: Public Laws of the State of South Carolina, p. 49 (1790).
At the time of the ratification of the Bill of Rights, Virginia had no specific statute outlawing sodomy, but had adopted the English common law. 9 Hening's Laws of Virginia, ch. 5, § 6, p. 127 (1821) (passed 1776).
Footnote 6 of the opinion then lists the "Criminal sodomy statutes in effect in 1868."
These footnotes are from the opinion of Justice White (pictured above via) for the Court in Bowers v. Hardwick, 478 U.S. 186 (1986), in which the Court reversed the Eleventh Circuit, and held Georgia's sodomy statute constitutional, based in large part on its reasoning that these criminal statutes formed a background against which a "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."
Bowers v. Hardwick was reversed by Lawrence v. Texas,539 U.S. 558 (2003).
April 26, 2011
Sorrell v. IMS: Oral Argument Analysis
The Court heard oral argument today (transcript here) in Sorrell v. IMS which raises the constitutionality of a Vermont statute prohibiting pharmacies from selling physician aggregated prescription information to pharmaceutical companies for use of that information in physician marketing in a process known as detailing.
Arguing for the state of Vermont, Bridget Asay had an effective opening:
Under State and Federal law, doctors write prescriptions for their patients to allow them access to drugs that the government deems too dangerous for unrestricted sale. Vermont's law allow doctors to decide whether this information that they're compelled to provide to pharmacies may be used in marketing that is directed at them.
Drug companies would certainly like to have this information for marketing, but they have no First Amendment right to demand it, just as they have no right to demand access to the doctor's tax returns, his patient files, or to their competitors' business.
However, Ms. Asay was soon pressed. For example, Justice Scalia commented that the State of Vermont was "making it more difficult" for pharmaceutical companies and their representatives "to speak by restricting access to information that would enable their speech to be most effective." Ms. Asay's replied, that indeed,
their speech would be more effective if they had access to patient information, if they had access to their competitors' trade secrets. There's certainly other information available that they would like to use in marketing, but is not available to them by law, and it -- it's our position that in the same way they do not have a right to demand access to information about the doctor's prescribing practices without his consent.
Again the Justices pressed her on the First Amendment claims and she was kept over time in order to further respond. Edwin Kneedler, arguing for The Solicitor General's Office supporting Vermont, articulated several analogies, including to the Driver's Privacy Protection Act and sought to distinguish the "general advertising cases" under the commercial speech doctrine. However, as Kneedler was explaining that it was not "radio or television advertising," but "one-on-one advertising," Justice Kennedy interrupted to state, "Well, that's because the pharmaceutical company deems this to be the most efficient."
Thomas Goldstein, of Scotusblog fame, attempted to take command, starting by instructing the Justices: "You will want to have available you to the red brief of IMS Health, Incorporated," and later stating, "This information -- I would direct you to the amicus brief -- you don't have to pull it out right now, but for later. The brief of the National Association of Chain Drugstores . . ."
Goldstein rejected the State's interest in protecting the privacy of the physicians, echoing what Justice Scalia had observed earlier - - - that doctors can simply refuse to meet with drug company representatives - - - but with a personal inflection: "the doctors do get to say: I don't want you to come visit me. They do that all the time. My dad's a doctor; he doesn't visit with detailers." Goldstein continued by portraying the pharmaceutical companies both as victims of discrimination and as clearly on the side of the public good. For example,
the way the First Amendment works in the marketplace of ideas that so upsets Vermont is that both sides get to tell their story, right? The thing that is supposed to be biased here is that the drug companies have too much money. That is not a basis for restricting speech.
This is information about lifesaving medications where the detailer goes in and talks about double blind scientific studies that are responsible for the development of drugs that have caused 40 percent of the increase in the lifespan of the American public.
Justice Breyer later interjected, "It used to be true there was something called a regulated industry." His phrasing of the statement in the past tense seemed to acknowledge the present ascendancy of corporate speech.
Footnote of the Day: Who Funded Those Studies?
In footnote 17, the Court wrote
The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting numerous “mock juries,” where different “jurors” are confronted with the same hypothetical case. See, e.g., C. Sunstein, R. Hastie, J. Payne, D. Schkade, W. Viscusi, Punitive Damages: How Juries Decide (2002); Schkade, Sunstein, & Kahneman, Deliberating About Dollars: The Severity Shift, 100 Colum. L. Rev. 1139 (2000); Hastie, Schkade, & Payne, Juror Judgments in Civil Cases: Effects of Plaintiff's Requests and Plaintiff's Identity on Punitive Damage Awards, 23 Law & Hum. Behav. 445 (1999); Sunstein, Kahneman, & Schkade, Assessing Punitive Damages (with Notes on Cognition and Valuation in Law), 107 Yale L.J. 2071 (1998). Because this research was funded in part by Exxon, we decline to rely on it.
Exxon Shipping Co. v. Baker, 554 U.S. 471, 501n.17 (2008).
The case resulted from the spilling of oil from the supertanker Exxon Valdez and the issue was one of the parameters of punitive damages under "maritime common law," but the resonance of footnote 17 is potentially far-reaching. Indeed, today's oral argument in IMS v. Sorrell involving studies funded by "big pharma" may raise similar concerns.
The Stanford Law and Policy Review put on a symposium on the issue of academic integrity in 2010, including Lee Epstein, Academic Integrity and Legal Scholarship in the Wake of Exxon Shipping Footnote 17, 21 Stan. L. & Pol’y Rev. 33 (2010), and Thomas O. McGarity, A Movement, a Lawsuit, and the Integrity of Sponsored Law and Economics Research, 21 Stan. L. & Pol’y Rev. 51 (2010) (both available on westlaw and lexis).
with J. Zak Ritchie
[image: Oil Cleaning After Exxon Valdez Spill, Prince William Sound, via]
April 25, 2011
Reduced Appointments Role for Senate
The Senate Committee on Homeland Security and Governmental Affairs earlier this month reported out S. 679, a bill to reduce the number of Senate-confirmed positions in the executive branch and to streamline the appointment process. The NYT reported on the bill here. (Thanks to Timothy Peterson for the tip.)
The positions that would be exempted from Senate confrimation are largely assistant secretaries and positions at about that level. The bill would also create a task force to reduce the paperwork requirements for executive appointments.
The bill apparently enjoys bipartisan support, but some argue that it would do away with an important check on presidential power. Here's David Addington, former counsel to former VP Dick Cheney, writing on the Heritage Foundation web-site:
The Framers of the Constitution did not give the President the kingly power to appoint the senior officers of the government by himself. . . .
The Congress should not decide by law to relinquish the Senate role in filling a federal office and leave filling the office to the President alone, unless the Congress concludes for each such office that the Senate's checking influence on the President is of no value because the office is of little or no authority or consequence. Generally, each time Congress by law removes the Senate from a role in the appointment to a federal office, the institutional influence of the Senate diminishes by a marginal amount and the influence of a President increases by a marginal amount. If the office is of little or no authority or consequence, the shift in influence may be immaterial, but if the office wields power that affects the American people, the Congress should not abdicate the Senate checking function.
Addington's point is overstated. The offices exempted under S. 679 are inferior offices, and Congress can vest their appointment in the President alone under the Appointments Clause. It's true that this means Congress loses, and the President gains, a little power. But that's power that resided in Congress only by virtue of legislation. The Appointments Clause in the Constitution, which reflects the balance struck by the framers, allows Congress to vest appointment of these positions in the President. Thus if anything, the bill would move to restore that original power balance.
Footnote of the Day: A Little Music Criticism Perhaps
New music always sounds loud to old ears. Beethoven seemed to make more noise than Mozart; Liszt was noisier than Beethoven; Schoenberg and Stravinsky, noisier than any of their predecessors.
N. Slonimsky, Lexicon of Musical Invective: Critical Assaults on Composers Since Beethoven's Time 18 (1953).
One music critic wrote of Prokofiev:
Those who do not believe that genius is evident in superabundance of noise, looked in vain for a new musical message in Mr. Prokofiev's work. Nor in the Classical Symphony, which the composer conducted, was there any cessation from the orgy of discordant sounds.
Id. at 5 (internal quotations omitted).
Justice Marshall, dissenting in Ward v. Rock Against Racism, 491 U.S. 781, 808 n.7 (1989).
[image: Anonymous, 18th C House Concert, via]
April 24, 2011
Van Hollen's Suit Against the FEC
Representative Chris Van Hollen (D-Md) last week filed suit against the FEC seeking declaratory and injunctive relief to get the agency to change its regulations to come into line with reporting requirements under the Bipartisan Campaign Reform Act. He also filed a petition with the FEC seeking the change.
Van Hollen argues that the BCRA requires corporations--including non-profits and labor unions--to report the names of contributors who give $1,000 or more. But the FEC issued a regulation, initiated in 2007, that limited reporting to those contributions that are donated for the express purpose of furthering electioneering communication. According to Van Hollen, the agency made the change because it found that corporations and labor unions receive many "donations" by a lot of different individuals--investors, customers, and political donors--and it's difficult and costly to keep track of them all.
This new "purpose" test in the regulation allows corporations, non-profits, and labor unions to sidestep reporting requirements and shield donors. According to Van Hollen's complaint:
The U.S. Chamber of Commerce, a Section 501(c) corporation, spent $32.9 million in electioneering communications in the 2010 congressional elections, and disclosed none of its contributors; American Action Network, a Section 501(c) corporation, spent $20.4 million in electioneering communications in the 2010 congressional elections, and disclosed none of its contributors; Americans for Job Security, a Section 501(c) corporation, spent $4.6 million in electioneering communication in the 2010 congressional elections, and disclosed none of its contributors . . . .
The list goes on.
Van Hollen was the principal House sponsor of the Disclose Act, which would have expanded contribution reporting requirements for corporations, non-profits, and labor unions. (The Court in Citizens United v. FEC upheld contribution reporting requirements for corporations and labor unions, even it overturned restrictions on "electioneering communications" by those entities.) The Act passed the House, but fell one vote short of a supermajority (60 votes) to defeat a filibuster in the Senate.
Van Hollen's suit is hardly a back-door way to get a Disclose Act in another form, though. His suit is based on the Administrative Procedures Act and claims only that the FEC's regulation is arbitrary, capricious, and contrary to law (the BCRA). In other words, the claim is merely that the "purpose" requirement in the regs is contrary to the broader disclosure requirement in the BCRA--a law already on the books. If this is right, it only affirms what the law already says.
Footnote of the Day: The Most Common Footnote in the Eleventh Circuit
Although its use has waned and its footnote number has vacillated, arguably the most common footnote in decisions of the Eleventh Circuit Court of Appeals is this one:
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
As Chief Judge Godbold wrote in Bonner,
This is the first case to be heard by the United States Court of Appeals for the Eleventh Circuit, established October 1, 1981 pursuant to the Fifth Circuit Court of Appeals Reorganization Act of 1980, P.L. 96-452, 94 Stat. 1995, and this opinion is the first to be published by the Eleventh Circuit. Under P.L. 96-452 the United States Court of Appeals for the Fifth Circuit was divided into two circuits, the Eleventh and the “new Fifth.” This court, by informal agreement of its judges prior to October 1, 1981, confirmed by formal vote on October 2, 1981, has taken this case en banc to consider what case law will serve as the established precedent of the Eleventh Circuit at the time it comes into existence. We hold that the decisions of the United States Court of Appeals for the Fifth Circuit (the “former Fifth” or the “old Fifth”), as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit.
A quick database search shows over 25,000 citations of Bonner v. City of Prichard.