March 17, 2012
Larsen on Supreme Court Fact Finding in a Digital Age: Saturday Evening Review
Alli Orr Larsen's article, Confronting Supreme Court Fact Finding, forthcoming in Virginia Law Review and available on ssrn, takes as it starting point the generalized facts that many readers of Supreme Court constitutional opinions notice the Court claims to know - - - and that the majority and dissenting opinions may not agree upon. Larsen gives a few examples - - - "is a partial birth abortion ever medically necessary? Can you effectively discharge a locked gun in self-defense? Are African American children stigmatized by segregated schools?"
The article "collects 100 examples of factual authorities relied on in recent decisions of the U.S. Supreme Court that were found “in house” – i.e. that cannot be found in any of the party briefs, amici briefs, or the joint record." She shows that "of the 120 cases since 2000 that political scientists label the “most salient Supreme Court decisions” – largely measured by whether they appear on the front pages of newspapers– 58 percent of them contain at least one assertion of legislative fact supported by sources found 'in house.' " Some of these facts are historical, with obvious implications for original intent interpretative strategies. The most common, according to Larsen, are facts, including statistics, "to demonstrate the emerging significance of a question to society."
Larsen contends that the information revolution has changed the way the Court sources its fact:
The digital revolution has two palpable relevant effects: it increases the amount of factual information available for review (statistics, social science research, polling data can all be posted to the world for free by anyone now) and it also makes this information faster to obtain -- literally just fingertips and a Google search away.
Larsen argues that while there are certainly benefits to letting judges research freely in a new digital age in which more information is available, there are also troubling effects: the systematic introduction of bias; the possibility of mistake; and concerns about notice and legitimacy.
She also has some suggestions, including a more open process in which "when the Court contemplates a question of legislative fact, it would solicit opinions and evidence from all interested parties and encourage public participation much like the notice and comment process in administrative agencies."
One can only imagine the comments section of a newly enhanced Supreme Court website! And for conlawprofs who allow open internet access during class, it could be a terrific exercise to take a moment and allow students to "check" a legislative fact in a Supreme Court opinion assigned for that class.
Larsen's article is a great contribution to the problem of "legislative facts" and a forward-looking reality-check to constitutional adjudication in the information age.
March 15, 2012
Human Use of Animals Workshop
For example, two speakers will be broaching the subject of legal personhood for animals: Richard Cupp of Pepperdine and Carter Dillard of the Animal Legal Defense Fund, and Laura Spitz, formerly a professor at U Colorado Law, will be interrogating categories of species.
The conference in March 30-31 at Emory Law School, Atlanta.
More information and registration here.
Kettling: European Court of Human Rights Upholds the Law Enforcement Practice
The controversial law enforcement practice of kettling - - - confining and cordoning persons, usually during a protest or assembly, often for extended periods of time - - - has been upheld by the European Court of Human Rights (ECHR) in its opinion in Austin & Others v. United Kingdom.
The ECHR case arose from a 2001 protest in London in which the applicants were held within a police cordon for up to seven hours during the course of the demonstration, although some had no affiliation with the protest. In the UK proceedings, the judges rejected the applicants' claims of false imprisonment and denial of the right to liberty (interestingly the applicants had dropped their original free speech and free assembly claims), reasoning in large part that law enforcement had to perform their duties of crowd control.
In the ECHR the applicants contended that they were deprived of their liberty in breach of Article 5 § 1 of the Convention, provides that "Everyone has the right to liberty and security of person" and that no one "shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
- (a) the lawful detention of a person after conviction by a competent court;
- (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
- (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
- (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
- (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
- (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
The U.K. government argued that there was no denial of liberty, but if there was, it was within the exceptions of (b) or (c).
The Court held that "the use of containment and crowd control techniques could, in particular circumstances, give rise to an unjustified deprivation of liberty in breach of Article 5 § 1. In each case, Article 5 § 1 must be interpreted in a manner which takes into account the specific context in which the techniques are deployed, as well as the responsibilities of the police to fulfil their duties of maintaining order and protecting the public, as they are required to do under both national and Convention law." (¶ 60).
the Court is unable to identify a moment when the measure changed from what was, at most, a restriction on freedom of movement, to a deprivation of liberty. It is striking that, some five minutes after the absolute cordon was imposed, the police were planning to commence a controlled release towards the north. Thirty minutes later, a second attempt by the police to begin release was begun but suspended, because of the violent behaviour of those within and outside the cordon. Between about 3 p.m. and 6 p.m. the police kept the situation under review, but the arrival of a new group of protesters and the dangerous conditions within the crowds led them to consider that it would not be safe to attempt to release those within the cordon. Controlled release was recommenced at 5.55 p.m., but stopped at 6.15 p.m.; resumed at 7 p.m. and suspended at 7.20 p.m.; begun again at 7.30 p.m., again abandoned; then carried out continuously, by groups of ten, until the entire crowd had been released at 9.45 p.m. . . . In these circumstances, where the police kept the situation constantly under close review, but where substantially the same dangerous conditions which necessitated the imposition of the cordon at 2 p.m. continued to exist throughout the afternoon and early evening, the Court does not consider that those within the cordon can be said to have been deprived of their liberty within the meaning of Article 5 § 1. Since there was no deprivation of liberty, it is unnecessary for the Court to examine whether the measure in question was justified in accordance with subparagraphs (b) or (c) of Article 5 § 1.
Three judges dissented, contending that "the aim or intention of a measure cannot be taken into account in assessing whether there has been a deprivation of liberty," but are only relevant in assessing whether the deprivation of liberty was justified.
Indeed, this does seem as if it is the better view, although the outcome might be the same. A deprivation of liberty for seven hours does not become less a deprivation because of the rationales for the police practices, although those practices might be justifiable.
Journalist Louise Christian of The Guardian has commentary here.
[image: Kettling at the G20 protests in London, 2009, via]
March 14, 2012
Association Lacks Standing to Force FDA to Ban Mercury in Vaccines
The D.C. Circuit ruled in Coalition for Mercury-Free Drugs v. Sebelius that the plaintiff-organization lacked standing to force the FDA to ban the mercury-based preservative thimerosal from vaccines.
The case grows out of the Coalition's petition to the FDA and subsequent suit seeking an order forcing the FDA to ban thimerosal-preserved vaccines. The FDA moved to dismiss for lack of standing; the D.C. District dismissed; and the D.C. Circuit affirmed.
The D.C. Circuit ruled that the FDA did not force any member of the Coalition to take thimerosal-preserved vaccines--instead, the FDA only allowed them--and therefore no Coalition member could show actual and imminent harm.
The Circuit court also ruled that doctor-members did not have standing based on reputational harm, because the FDA did not force them to prescribe or to use thimerosal-preserved vaccines. (Those doctors could have used thimerosal-free vaccines.)
Finally, the court rejected the plaintiff's claim that the FDA's policy of allowing thimerosal-preserved vaccines made thimerosal-free vaccines prohibitively expensive. The court said that the plaintiffs could still reasonably obtain thimerosal-free vaccines, even if their price went up slightly becuase of the policy allowing thimerosal-free vaccines, and therefore no Coalition member alleged a sufficient injury based on lack of access to thimerosal-free vaccines.
March 13, 2012
Summer Reading List: Books by Supreme Court Justices? All 351Books?
A good place to start might be any one of the books by the most prolific Justice, William O. Douglas, with fifty-one books. Then one might try one of Justice Joseph Story's thirty-three books. Then one could read a a book by William Howard Taft, best remembered as President, but also Chief Justice, who wrote thirty-one books.
Professor Ronald Collins has lost of suggestions in a terrific posting at SCOTUSblog discussing Supreme Court Justices as authors. Collins provides a great overview with some noteworthy books highlighted (including a section on constitutional law), as well as organized by Justice.
This bibliography of 351 books is a great resource!
March 12, 2012
Karlan on Rights and Remedies
Pamela Karlan argues in the Boston Review that the Supreme Court has stepped back from protecting civil rights and civil liberties in recent years by constricting the "remedial machinery" of rights protection (in addition to constricting the very definition of rights in the first place).
Karlan's short piece, What's a Right Without a Remedy?, presents the argument with especial reference to the exclusionary rule and the qualified immunity doctrine in Section 1983 litigitation. She argues that on the one hand the Court has been chipping away at at a principal criminal procedure protection, the exclusionary rule, leaving those harmed without a criminal procdure remedy. But on the other hand the Court has gutted the other principal enforcement mechanism, 18 U.S.C. Sec. 1983, through the doctrine of qualified immunity. The net result: The Court's tightening of the "remedial machinery" is leaving plaintiffs without a remedy.
In its cases cutting back on the exclusionary rule, the Court often points to the availability of alternative mechanisms for enforcing the Fourth Amendment's prohibition of unconstitutional searches and seizures. The Court has repeatedly highlighted the option to seek civil damages under a Reconstruction-era statute (42 U.S.C. Sec. 1983), which authorizes suits against state and local officials and governments that deprive individuals of their constitutional rights. Yet the Court has substantially weakened the section 1983 remedy at precisely the same time that it has weakened the exclusionary rule, engaging in a sort of shell game in which the presence of each remedy serves to justify weakening the protections of the other.