Saturday, June 11, 2011
A three-judge panel of the D.C. Circuit on Friday unanimously reversed the district court's decision granting Guantanamo detainee Hussain Salem Mohammad Almerfedi's petition for a writ of habeas corpus.
The case, Almerfedi v. Obama, is a relatively close case for the D.C. Circuit. It turned on three pieces of evidence: (1) Almerfedi's acknowledgment that he stayed for two-and-a-half months at Jama'at Tablighi, an Islamic missionary organization that is a Terrorist Support Entity "closely aligned" with al Qaeda (although he refused to join the organization and barely talked to anyone there); (2) Almerfedi's circuitous route to his stated destination, Europe, which took him closer to the Afghan border; and (3) his unexplained possession of $2,000.00 in cash when he was captured. The three together, wrote the court, demonstrated by a preponderance of the evidence that Almerfedi was "part of" al Qaeda.
But still the panel emphasized the minimal preponderance-of-the-evidence standard when evaluating the government's case--and suggested that this was the first time it had evaluated a case so close.
The panel split on one issue (even as they agreed on the evidence above and on the outcome): whether to credit the statements of another detainee, al-Jadani, that Almerfedi stayed at a guesthouse in Tehran maintained by al Qaeda in 2002 or 2003. (The district court found that al-Jadani's statements were not credible.) Judges Silberman and Kavanaugh credited al-Jadani's statements; Judge Rogers did not. Judge Rogers wrote that "[t]he record evidence does not lead to a 'firm conviction' that the district court's analysis of al-Jadani's statements was mistaken, much less implausible."
The NYT obituary notes that after representing persons "blacklisted because of their refusal to answer questions before the House Un-American Activities Committee," "Mr. Redlich began teaching constitutional and tax law at N.Y.U." and started to "work without compensation on a series of appeals for death row inmates at Sing Sing."
Professor Steven J. Heyman's article, The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, has just been published, 19 William & Mary Bill of Rights Journal 661-723 (2011), with a draft available on ssrn.
It is a must-read, especially for those intending to quote Justice Oliver Wendell Holmes (pictured left) in their scholarship this summer or in their future teaching. Heyman's article is an excellent exploration of Justice Holmes writings - - - both in Holmes' opinions and elsewhere - - - on First Amendment and democratic values.
Heyman argues that First Amendment jurisprudence has "Jekyll-and-Hyde quality." There is a deep divide between the Constitutional protection of "freedom of expression in order to promote basic liberal values such as individual self-fulfillment, democratic deliberation, and the search for truth," and on the other hand, protection for "racist hate speech, violent pornography, invasion of privacy, and other kinds of expression that undermine those fundamental values." Although Heyman does not extend the Jekyll and Hyde metaphor explicitly, what is clear is that Heyman conceptualizes Justice Holmes not as the more respectable Dr. Jekyll, but as the evil Mr. Hyde of Robert Louis Stevenson's famous novel.
Heyman analyzes Holmes' famous "marketplace of ideas" conceptualization of the First Amendment, noting Holmes' "deeply held Darwinian views about life and law." Id. at 690. Holmes' competitive notion of democracy, best expressed in Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting), has always seemed a bit at odds with another of Holmes' well known passages, his dissent in Lochner v. New York 198 US 45 (1905). Heyman views Holmes' as consistent:
Holmes understood social and political life in terms of group conflict, such as the struggle between workers and employers. He saw the constitutional order as a neutral framework for channeling such conflict and resolving it by lawful means. This is the view that animates the other judicial opinion for which he is best known—his dissent in Lochner v. New York. There he writes that “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Instead, the Constitution establishes an arena within which groups with “fundamentally differing views” can struggle for dominance. “Every opinion tends to become a law,” and except in the most extreme cases, the courts should not interpret the Constitution to prevent “the natural outcome of a dominant opinion” or to interfere with “the right of a majority to embody their opinions in law.”
19 Wm.&Mary Bill Rts. J. at 684 (footnotes omitted). Heyman is most convincing regarding his critique of Holmes' worldview and its ultimate meanings for democracy. He elucidates the "broader problem with Holmes’s view" thusly:
Contrary to the impression that may be conveyed by the expression “free trade in ideas,” Holmes does not believe that free speech does or should involve an interaction between autonomous subjects. Instead, he sees speech as an activity in which the speaker treats
others as objects. This may involve an effort to dominate them, but it may simply involve
an effort to use them to achieve the speakers’ own ends.
Id. at 705. Yet Heyman's article is not limited to a historical critique of Holmes, but an analysis of how this Holmesian view continues to affect recent free speech cases, including Citizens United, in which the Holmesian world view of the majority is juxtaposed to the liberal humanist views of Justice Stevens' dissenting opinion.
Put this on your summer reading list!
[image: Oliver Wendell Holmes, circa 1924, via]
Friday, June 10, 2011
Iceland is crowdsourcing the drafting of its new constitution, using a web-site and social media to allow Icelanders to see--and comment on--the emerging and evolving text. Here's an explanation, courtesy of CNN:
Iceland's current Constitution was written in 1944, when it gained independence from Denmark. The effort to rewrite it comes in the wake of the country's bank collapse.
The Constitutional Council posted the web-site for the project here, but, alas, it's in Icelandic.
The ACLU yesterday sued the U.S. State Department to get copies of 23 cables relating to the secret use of drones for targeted killings, opposition to the release of photos showing U.S. torture of detainees, and attempts to undermine European investigations into the rendition and torture of suspected terrorists. The complaint in ACLU v. Department of State (D.D.C.) is here.
The cables were released by WikiLeaks and widely disseminated by news organizations in November 2010. State denounced their release and publication, instructed its employees not to download them from the internet, prohibited attorneys for Guantanamo detainees from viewing them outside a secure government facility, and charged PFC Manning under the UCMJ for releasing them--even as it also declined to say whether they were authentic. According to the ACLU, the government's position--a "legal fiction"--has permitted government officials to evade liability for illegal conduct."
The ACLU filed a FOIA request for the cables on April 12, 2011, and sought expedited processing. The government rejected expedited processing and has yet to produce the cables.
CALL FOR PRESENTATIONS FOR AALS ON TEACHING
Re: Request for Proposals on Innovative Teaching, Other Legal Education Practices, and Work at the Intersections among Scholarship, Teaching, and Service
We are planning the AALS 2011 Annual Meeting Workshop on "Changes in Law Practice; Innovations in Legal Education," to be held on Thursday, January 5, 2012 in Washington, D.C. The workshop seeks to examine (1) the many changes currently underway in how law practice is organized and carried out, and (2) the relationship between these changes and the future of legal education.
We are seeking proposals on innovations in the many facets of legal education, especially teaching and work at the intersections among teaching, scholarship, and service. Proposals selected by the workshop planning committee will receive national exposure, either through possible presentation on a workshop panel or by being included on the AALS Workshop webpage highlighting ideas and themes generated by the workshop. We are interested in any innovations taking place in legal education that would be of interest to members of the legal academy in planning for the future against the backdrop of the changes in law practice that our students will encounter in their legal careers.
Some possible topic areas might include (but are not necessarily limited to):
innovations that point the way to what legal education of the future could or should be;
innovations in teaching that reflect expansive conceptions of the cognitive abilities and skills needed for law practice beyond traditional conceptions of legal analysis;
innovations that combine newer and more traditional teaching methods;
innovations that engage with changes in law practice and/or respond to the changing economic realities of the profession;
innovations that involve interdisciplinary collaborations and/or borrowing from ideas and innovations taking place in other disciplines or professions;
innovations aimed at cultivating experiential learning and reflection through externships and other practice-based experiences;
innovations in legal education that address differences in styles of learning;
innovations in methods of giving meaningful feedback and evaluation;
innovative work at the intersections among scholarship, teaching and service;
innovations in scholarly activity that involve different kinds of critical inquiry beyond the traditional law review article, such as a sabbatical engaged in law practice;
innovations in teaching designed to address gender and racial disparity among positions of leadership and power in the legal profession;
interdisciplinary teaching, scholarship and/or service projects;
innovations in the financing and organization of legal education.
Interested proposal writers from faculty at AALS member schools should submit a short (not more than 1,000 word) description of their innovation in teaching or legal education more generally, or innovation through work at the intersections among scholarship, teaching and service, to 2012WLP@aals.org by July 15, 2011.
We will notify proposal writers by September 1, 2011, if they have been selected for an oral workshop panel presentation or a written posting of their proposal on the AALS website for the workshop. Selected speakers will pay their registration fee for the Annual Meeting and are responsible for their own travel and other expenses. Please direct questions to any one of the planning committee members; Susan Carle, email@example.com; Renee Knake, firstname.lastname@example.org; Carol Needham, email@example.com; Mitt Regan, firstname.lastname@example.org; and Carla Pratt, email@example.com.
Steve Gey was a notable First Amendment scholar; some of his work is available on ssrn. He taught at FSU since 1985. He will surely be missed by his colleagues, friends, students, and family.
Monday, June 6, 2011
The Supreme Court ruled today in Fox v. Vice that defendants in civil rights actions are entitled to attorney's fees under 42 U.S.C. Sec. 1988 only for costs that the defendant would not have incurred but for any frivolous claims--those costs incurred because of, but only because of, a frivolous claim.
The case involved a suit in state court by a former candidate for chief of police against the then-incumbent and the town for state-law claims, including defamation, and federal civil rights claims under 42 U.S.C. Sec. 1983, including interference with the right to seek public office. The defendants removed the case to federal court and, after discovery, sought and won summary judgment on the federal claims. (The federal court sent the state claims back to state court, where they remain.) Both parties agreed that the federal claims were "no[t] valid."
The defendants moved for attorney's fees under Section 1988 (authorizing a court to award reasonable attorney's fees to the prevailing party, plaintiff or defendant, in certain civil rights cases). The district court granted attorney's fees on the basis that the federal claims were frivolous. The court awarded fees covering all of the defendants' attorneys' work, not just the work associated only with the federal claims, because the "various claims arose out of the same transaction and were so interrelated that their prosecution or defense entailed proof or denial of essentially the same facts." A divided Court of Appeals affirmed, deepening a split among the circuits on the question of how to calculate attorney's fees for a defendant when some claims are frivolous and some claims are non-frivolous.
A unanimous Supreme Court gave this answer:
Section 1988 allows a defendant to recover reasonable attorney's fees incurred because of, but only because of, a frivolous claim. Or what is the same thing stated as a but-for test: Section 1988 permits the defendant to receive only the portion of his fees that he would not have paid but for the frivolous claim.
Op. at 8. In this case, the defendants were not entitled to fees for attorney work on non-frivolous claims that overlapped with attorney work on frivolous claims:
In a suit of this kind, involving both frivolous and non-frivolous claims, a defendant may recover the reasonable attorney's fees he expended solely because of the frivolous allegations. And that is all. Consistent with the policy underlying Section 1988, the defendant may not receive compensation for any fees that he would have paid in the absence of the frivolous claims.
Op. at 13.
The result means that civil rights plaintiffs who assert both frivolous and non-frivolous claims may have to pay attorney's fees only when the defendant can segregate out attorney work on the non-frivolous claims--where there's no overlap between the work on the two types of claims. This is a relatively plaintiff-friendly result, considering that some lower courts, including the lower courts here, would charge plaintiffs for attorney's fees for all defendant work on frivolous claims (including that work that the defendants' attorneys would have done to advance interrelated non-frivolous claims).
Justice Kagan wrote the plain-spoken, easy-to-read opinion, rife with hypothetical illustrations to show how the Court's rule will work. She emphasized the discretion that trial courts have in determining attorney's fee awards, and underscored the deference that appellate courts owe to those determinations, concluding with this hat-tip to the judge-as-umpire analogy: "A trial court has wide discretion when, but only when, it calls the game by the right rules."
Today, the United States Supreme Court rendered an Order in Hazelton, PA v. Lozano:
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___ (2011).
The Third Circuit panel, affirming the district court, rendered an extensive 188 page opinion in September 2010 which we discussed here. The Third Circuit panel unanimously agreed that the two ordinances of Hazelton, Pennsylvania regulating immigration are pre-empted by the federal immigration scheme. The employment provision in Hazleton made it unlawful “for any business entity” to “recruit, hire for employment, or continue to employ” or “permit, dispatch, or instruct any person” who is an “unlawful worker” to perform work within Hazleton, and required employer affidavits. The ordinances also had a housing provision making it unlawful for landlords to rent to unlawful residents.
As we noted, the Third Circuit opinion conflicted in part with the Ninth Circuit's conclusion in Chamber of Commerce v. Whiting. And now that the United States Supreme Court has affirmed Whiting - - - in an opinion last week - - - it is not surprising that the Court would remand Hazelton to the Third Circuit.
Sunday, June 5, 2011
According to Jennifer Schuessler in the NYT Book Review, "Beach-reading season may be in full swing, but that doesn’t mean there isn’t a whole lot of constitutional law being debated on the best-seller list."
Berry's novel revolves around a DaVinci Code-like premise:
Four United States presidents have been assassinated—in 1865, 1881, 1901, and 1963—each murder seemingly unrelated and separated by time.
But what if those presidents were all killed for the same reason: a clause in the United States Constitution—contained within Article 1, Section 8—that would shock Americans?
Just as a reminder, Article I, section 8, provides:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.