Oct 20, 2014

#SCOTUS Transcript Error: “Mr. Scalia” ?!?

There is a glaring error on p. 18 of the transcript in Kansas v. Nebraska. Rather than writing “Justice Scalia,” the Court Reporter wrote “Mr. Scalia.” And that mistake has been there for a full week! Earlier on the page, the Justice is accurately referred to as “Justice Scalia.”


H/T Jacob Berlove who notes that Chief Justice Rehnquist may not have been as forgiving for such an error.

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Oct 20, 2014

President Obama Does Not Want To Pull A Taft. Being A Justice Is Too “Monastic”

Towards the end of his interview with the President, Jeff Toobin asks whether he would like to repeat the role of President Taft and become Justice Obama.

As Marine One thundered overhead, about to land on the White House lawn and take Obama to a series of political fund-raisers, I asked him if, like William Howard Taft, he entertained thoughts of serving as a judge later in his career. “When I got out of law school, I chose not to clerk,” he said. “Partly because I was an older student, but partly because I don’t think I have the temperament to sit in a chamber and write opinions.” But he sounded tempted by the idea.

“I love the law, intellectually,” Obama went on. “I love nutting out these problems, wrestling with these arguments. I love teaching. I miss the classroom and engaging with students. But I think being a Justice is a little bit too monastic for me. Particularly after having spent six years and what will be eight years in this bubble, I think I need to get outside a little bit more.”

I have little faith in Justice Obama’s ability to interpret statutes and executive powers, based on some of the positions his administration has taken.

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Oct 20, 2014

Background on Sotomayor’s Concurring in Daimler AG v. Bauman

Joan Biskupic’s excellent new book, Breaking In, brings us deep insights into the most important constitutional law decisions of our era. But one bit that seems to have escaped the media was coverage over Justice Sotomayor’s concurring opinion in all-important-jurisdiction case Daimler AG v. Bauman. Forget affirmative action or the Fourth Amendment. We’re talking about RBG and Sotomayor dueling on personal jurisdiction!

Biskupic explains some of the background of the decision:

For weeks, Sotomayor had seen drafts of Ginsburg’s opinion as it circulated among the justices. She knew she was about to be a public target. But she would have the courage of her convictions— perhaps stubbornly, misguidedly— yet with confidence enough to be the one in an 8– 1 vote. A week before the Daimler opinion was handed down, in January 2014, Sotomayor told an audience of more than a thousand that to bolster her courage, she often thought about the worst thing that could happen when she undertook a challenging endeavor. She would conclude: “You know something … so what?”

In a footnote that takes up almost entire page in Daimler v. Bauman, Jusice Ginsburg singles out Justice Sotomayor for “selectively referring to the trial court record” in Perkins v.  Benguet Consol. Mining Co. (1952). Justice Sotomayor had the opportunity to pull back her dissent, in the face of withering criticism from 8 Justices, but she said, “so what.”

“So what.” That was more-or-less my reaction to reading Sotomayor’s dissent.

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Oct 20, 2014

Toobin: “In Light of this Realignment” DOJ Sought Rehearing En Banc, Rather than Cert, in Halbig

In Jeff Toobin’s latest article, he interviews President Obama, and offers a number of insights into how he has made a mark on the Judiciary. This bit about Halbig confirms what we all knew about his strategic appointments to the D.C. Circuit:

By a vote of two to one, the court held, in Halbig v. Burwell, that the insurance subsidies that allow millions of Americans to buy health insurance were contrary to the text of the law and thus were illegal. If such a decision had been made earlier in Obama’s tenure, lawyers for his Administration would have been left with a single, risky option: an appeal to the politically polarized, and usually conservative, Supreme Court.

This year, the lawyers had another choice. When President Obama took office, the full D.C. Circuit had six judges appointed by Republican Presidents, three named by Democrats, and two vacancies. By the time of the Halbig decision, Obama had placed four judges on the D.C. court, which shifted its composition to seven Democratic appointees and four Republicans. In light of this realignment, the Obama Administration asked the full D.C. Circuit to vacate the panel’s decision and rehear the Halbig case en banc—that is, with all the court’s active judges participating. The full court promptly agreed with the request, and the decision that would have crippled Obamacare is no longer on the books. Oral argument before the full court is now set for December.

The transformation of the D.C. Circuit has been replicated in federal courts around the country.


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Oct 19, 2014

Poorly Worded Poll on “Supreme Court Action” on Gay Marriage

ABC News ran a story with the headline “Most Americans Back Supreme Court on Gay Marriage — Including in the Affected States.” It begins:

Most Americans in a new ABC News/Washington Post poll support the recent U.S. Supreme Court action allowing gay marriages to go forward in several states – including a bare majority in the 11 states in which such marriages have begun in the past week and a half.

Overall, 56 percent of Americans support the court’s action, while 38 percent oppose it – exactly matching opinions on whether or not gay marriage should be legal, asked in an ABC/Post poll in June. These results reflect the public’s dramatic shift in support of gay marriage the past decade.

The story goes on to explain that a majority approved of the Court’s denial of certiorari, which lifted stays in a number of states to allow same-sex marriages to proceed.

But the poll itself offered no such clarification. Here is the question posed to the those poled:

On another subject, do you support or oppose the Supreme Court action this week that allows gay marriages to go forward in several more states? Do you feel that way strongly or somewhat?

Taking as a given that most people are rationally ignorant about the Supreme Court, and have no idea who the Justice are, or what they do, I find this poll unhelpful. When a poll asks about “Supreme Court action,” invariably the interviewees would think that there was some sort of decision on gay marriage. Instead, as we know, the Court issued no decision, and by declining review, allowed gay marriages to proceed in some of the affected states, but not in other states absent a petition for certiorari. I understand it would be very difficult to explain this complicated dynamic to non-experts, the question was poorly worded, as it suggested something that did not happen–a decision on gay marriage.

The flipside to this criticism, is that Americans don’t seem particularly bothered by a Supreme Court decision invalidating bans on same-sex marriage. This undercuts Justice Ginsburg’s oft-expressed concern about moving too quickly.

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Oct 19, 2014

Houston Modifies Subpoenas, Still Seeks Information About What Pastors Told Members

After the initial kerfuffle of the City of Houston’s subpoena request to Pastors asking for copies of their sermons about the Equal Rights Ordinance, Mayor Annise Parker has issued revised subpoenas. They are effectively the same, but eliminated the word “sermon.” In other words, they want the same information provided by any other means.

In a press release, the Mayor Explains why she is seeking this information:

““I support the right of the clergy to say whatever they want to say, even if I disagree with them.  This is not about what they may be preaching from the pulpit.  It is about proving that the petition gathering process organized by these pastors did not meet the requirements of the City Charter.  This information is critical to proving the city’s contention that the petition was ineligible for placement on the ballot and that the organizers knew this.”
In other words, the City is hoping to find something to suggest that whatever the Pastors told their members was not consistent with the City Charter’s requirements for collecting signatures.
Putting aside any First Amendment issues, and the fact that the new subpoenas do not ask for information about sermons, I’m still not sure what they are going to find. The signatures, and whether they are valid or not, speaks for themselves. What difference would it make if the Pastors said something incorrect about the process?

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Oct 19, 2014

New York Adds 34,000 People With Mental Health Conditions To No-Gun List Without Due Process

The relationship between guns and mental health is much trickier than those who support gun control laws would have you think. First, most people who have mental health conditions are not dangerous. Second, singling out people with mental health conditions stigmatizes them, and could further harm their mental health. Third, requiring doctors to disclose to the state anyone who may have mental health conditions, with the consequence of depriving them of a civil right, may chill the doctor-patient relationship, and inhibit people who are in need of help from talking to a professional.

New York’s Safe Act requires doctors to report to the state anyone who is “likely to engage in conduct that would result in serious harm to self or others.” Then, as the NY Times reports, the state “rubber stamps” those names and puts them on a no-gun list, where they remain for 5 years. Any existing permit is immediately revoked, and all firearms are seized. Only after the permit is revoked–likely with no notice–can someone go to court and petition a judge to remove the name. Already, over 40,000 people have been added to this list. This program exacerbates all three problems I mentioned above.

First, as the Times (not me) explains, most people who are diagnosed with mental health conditions that may harm others are not dangerous.

But the number of entries in the database highlights the difficulty of America’s complicated balancing act between public safety and the right to bear arms when it comes to people with mental health issues. “That seems extraordinarily high to me,” said Sam Tsemberis, a former director of New York City’s involuntary hospitalization program for homeless and dangerous people, now the chief executive of Pathways to Housing, which provides housing to the mentally ill. “Assumed dangerousness is a far cry from actual dangerousness.” …

Mental health professionals and advocates point out, however, the vast majority of people with mental illnesses are not violent. Accurately predicting whether someone will be violent, they said, is also a highly fraught process.

Second, singling out these people may frustrate their treatment:

Similar laws in other states have raised the ire of gun rights proponents, who worry that people who posed no threat at all would have their rights infringed. Mental health advocates have also argued that the laws unnecessarily stigmatized people with mental illnesses.

Third, making the doctors must-reporters means the doctor-patient relationship will suffer:

Several mental health experts said the data obtained by The Times renewed their fears that the reporting requirement would discourage patients from seeking help.

“The threshold for reporting is so low that it essentially advertises that psychiatrists are mandatory reporters for anybody who expresses any kind of dangerousness,” said Dr. Mark J. Russ, director of acute care psychiatry at Zucker Hillside Hospital in Glen Oaks, Queens, which has filed many reports to the state.

Finally, the process seems designed to maximize the number of people on the list, without any meaningful oversight.

Under the 2013 law, the reports prepared by doctors, psychologists, nurses and social workers are first sent to county officials. If they agree with the assessments, the officials then input the names into the state database. The information is retained for five years. If the authorities find a person in the database has a gun permit — necessary to purchase a handgun in New York — they are required to revoke the license and seize any guns. The people in the database are barred from obtaining a permit until their names are purged.

The way the law has played out, local officials said, frontline mental health workers feel compelled to routinely report mentally ill patients brought to an emergency room by the police or ambulances. County health officials are then supposed to vet each case before it is sent to Albany. But so many names are funneled to county health authorities through the system — about 500 per week statewide — that they have become, in effect, clerical workers, rubber-stamping the decisions, they said. From when the reporting requirement took effect on March 16, 2013 until Oct. 3, 41,427 reports have been made on people who have been flagged as potentially dangerous. Among these, 40,678 — all but a few hundred cases — were passed to Albany by county officials, according to the data obtained by The Times.

As of Saturday, the state updated the database to 42,900 reports, and said that roughly 34,500 of those were unique individuals. The rest of the names were duplicates because people had been reported more than once.

One such state officer admits that he is just the “middleman” and he doesn’t even read most of the applications.

Kenneth M. Glatt, commissioner of mental hygiene for Dutchess County, said that at first, he had carefully scrutinized every name sent to him through the Safe Act. But then he realized that he was just “a middleman,” and that it was unlikely he would ever meet or examine any of the patients. So he began simply checking off the online boxes, sometimes without even reviewing the narrative about a patient.

“Every so often I read one just to be sure,” Dr. Glatt, a psychologist, said. “I am not going to second guess. I don’t see the patient. I don’t know the patient.” He said it would be more efficient — and more honest — for therapists to report names directly to the Division of Criminal Justice Services, which checks them against gun permit applications.

This is hardly consistent with due process, as serious deprivations of civil rights are being made without eventt he care of checking the decision of a doctor to report. And remember, the individual receives no notice in advance.

I also don’t have much faith in the New York judiciary, if this example is indicative of how courts treat revoked permits:

Patients can challenge the revocations of their gun permits in court, and at least one has: a man in Otsego County, in central New York, who lost his gun license after being admitted to a hospital because he had threatened to harm himself, according to court papers. He also said he had accidentally exposed himself to a young girl and was racked with guilt. The county judge ruled the license could be revoked.

Supporters of this law will say something to the effect of, if a single live is saved, then this law is worth it. See the Brady Campaign:

Gun control supporters argue a wide net is appropriate, given the potentially dire consequences. Even if just one dangerous person had a gun taken away, “that’s a good thing,” said Brian Malte, senior national policy director of the Brady Campaign To Prevent Gun Violence.

I don’t accept this calculus. As I’ve documented elsewhere, the number of mass shootings by people with diagnosed mental health conditions is extremely small. The overwhelming majority of gun violence is by people who have never been diagnosed by mental health professionals. Extreme steps are being taken that can deprive thousands of people of their rights of due process, to say nothing of the Second Amendment, with the slim chance of possibly keeping a single gun out of the hands of someone who may be dangerous.

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Oct 19, 2014

Even for the Constitution, Everything is Bigger in Texas

In two recent Supreme Court cases, the sheer size of Texas has played into the constitutional calculus. First, with respect to Texas’s new abortion laws, the District Court, in finding an undue burden, noted that some people would have to drive up to 5 hours to visit a clinic. Second in her dissent from the Court’s denial of a stay in the Texas Voter ID case, Justice Ginsburg noted that some people in Texas would have to drive up to three hours to a government office in order to obtain a new ID. (Having to go to any DMV should be an undue burden in my eye. Forget the 5 hour drive. I’ve waited 3 hours once I got there! But I digress).

In this post, I won’t draw any conclusion of whether these laws are unconstitutional. Rather, I want to draw attention to a fact that most people are aware of, but maybe haven’t connected in the context of the state imposing burdens on people by making them travel further. Everything is bigger in Texas. The state is huge. In various parts of the state, you will have to drive very, very far to go anywhere.

Simply stating the number of hours one has to drive to get somewhere, in my mind, is not sufficient to illustrate how big of a burden someone suffers as a result of some law. Rather, that distance must be viewed in the context of where this place is. When someone chooses to live in a remote area of a humongous state, quite remote from many of the comforts readily available along the I-95 Amtrak Corridor, they generally accept the fact that they will have to drive far to go places they may need to go. I’ve done the math, and in various parts of Texas, the nearest Wal-Mart is a 2 hour drive. Now, I am not suggesting that visiting a Wal-Mart is on the same constitutional plane as the right to vote. Rather, I am trying to set a baseline for expectations of what would constitute a burden to people living in these remote areas, accustomed to traveling huge distances.

Let’s call this an “Everything’s Bigger in Texas” principle of undue burdens. An undue burden to travel 5 hours in a small state like New Hampshire or Maine cannot be considered along the same lines as 5 hours in a huge state like Texas. Any analysis that looks at distances has to consider how large the state, how densely populated an area is, and how far that area is from other essential services. The people are generally accustomed to driving longer distances.

Now there is an obvious rejoinder to that. The poorest people–who are most likely to be impacted by these laws–may not have the means to drive this far, nor take that much time out of the day for a 10-hour roundtrip. That is absolutely true, and is a factor that can be considered when assessing the burden imposed by requiring someone to travel to a further destination. But that rejoinder must be tempered by the general understanding that people of all socio-economic classes living in certain sparsely populated areas have to travel further, when having to go somewhere that is not available locally.

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Oct 19, 2014

Events in Philadelphia on Monday and Tuesday

Monday at 5:00 p.m., I am speaking to the Philadelphia Federalist Society Chapter on the constitutionality of the President’s Executive Actions, aptly titled “ISIS, Immigration, and Obamacare.”

On Tuesday at 1:35 p.m., I am speaking at the Forbes 30 under 30 Summit, also in Philadelphia, on millennials and politics. Here is the panel description:

The Lost Vote
Studies have shown that younger voters no longer feel a major draw to a political party and don’t trust their government given the recent barrage of party politics occurring in DC. But how will politicians sell themselves to voters in the upcoming elections? And how are they going to win back the trust of young voters?Josh Blackman, Assistant Professor of Law, South Texas College of Law, Houston
Nate Levine, Founder, OpenGov
Nathaniel Loewentheil, Policy Advisor, The White House National Economic Council

Moderator: McKay Coppins, Senior Political Writer, Buzzfeed


If anyone is in the City of Brotherly Love on Monday and Tuesday, I hope to see you around.

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Oct 17, 2014

“The Shooting Cycle” Published in Connecticut Law Review

The Shooting Cycle,” co-authored with my law-school bound friend Shelby Baird, has now been published in the Connecticut Law Review, as part of a symposium on the Second Amendment. Our article focuses on the perception of mass shootings, and how legislatures react, or don’t react to these tragedies. You can download it here. Here is the abstract:

The pattern is a painfully familiar one. A gunman opens fire in a public place, killing many innocent victims. After this tragedy, support for gun control surges. With a closing window for reform, politicians and activists quickly push for new gun laws. But as time elapses, support decreases. Soon enough, the passions fade, and society returns to the status quo.

We call this paradigm “the shooting cycle.” This article provides the first qualitative and quantitative analysis of the shooting cycle, and explains how and why people and governments react to mass shootings.

This article proceeds in five parts. First, we bring empirical clarity to the debate over mass shootings, and show that contrary to popular opinion, they are fairly rare, and are not occurring more frequently. Second, relying on cognitive biases such as the availability heuristic, substitution effect, and cultural cognition theory, we demonstrate why the perception of risk and reaction to these rare and unfamiliar events are heightened. Third we chronicle the various stages of the shooting cycle: tragedy, introspection, action, divergence, and return to the status quo. During the earlier stages, emotional capture sets in, allowing politicians and activists to garner support for reform. But, after the spike, soon support for reform fades, and regresses to the mean. Fifth, with this framework, we view the year following the horrific massacre in Newtown through the lens of the shooting cycle. We conclude by addressing whether the shooting cycle can be broken.

You can read the other articles in this symposium issue here.

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Oct 16, 2014

Buck v. Cornell: Three Generations of White Tail Deer Is Enough

In Buck v. Bell, the Supreme Court sanctioned the state performing tubal ligation surgeries on undesirable persons. Now, in Buck v. Cornell, the Ivy League college is performing tubal ligation on undesirable deer. Three generation of white tail deer is enough!

The Washington Post reports on Cornell’s ineffective methods of sterilizing deer in an effort to cull the surging deer population.

Typically, a deer boom is dealt with through hunting. Often, sharpshooting riflemen or archers are brought in to bait the animals into zones where shots can safely be taken. Cornell’s administrators took a different approach: They chose to experiment with sterilizing many of the wild deeron campus while allowing periodic hunting on nearby land — and the result was something that nobody anticipated.

Washington’s deer population has surged in recent years, particularly in Rock Creek Park, where last year an estimated 335 deer lived.

Much like Carrie Buck, the deer had their fallopian tubes cut:

The method of contraception chosen by Cornell was tubal ligation, in which a doe’s fallopian tubes are either blocked or severed. This prevents egg cells from reaching the uterus. Unlike chemical forms of birth control, tubal ligation is typically permanent and avoids the expense of capturing the same deer each year to maintain their infertility. At a cost of roughly $1,200 per deer, 77 does were captured and sterilized though tubal ligation. (Without the help of the Cornell University College of Veterinary Medicine, the costs would have been higher.)

But it didn’t work! How can it be that the population increased after performing tubal ligation on the deer?!

Bucks and does form temporary pairs for a few days in order to mate. Bucks can travel for miles to seek out does in heat, which means that a large number of females would need to be targeted for sterilization. …

Under normal conditions, all female whitetails go into heat within several weeks of each other and become pregnant at around the same time. This annual event is called the rut. However, if a doe is not impregnated during the rut, it will enter heat again the following month and again the month after that. Because the ligated does were unable to become pregnant, they continued to produce chemical signals of readiness to reproduce — signals that can attract bucks from miles away.

By preventing pregnancy in does, Cornell had accidentally invented a population of buck magnets that regularly drew in new deer from the surrounding area.

And, here’s the kicker–even deer that were sterilized still managed to give birth. So they gave them ovariectomies! And that still didn’t work! How is this even possible?

Cornell has begun experiments with ovary removal in deer, but Curtis’s team has already had a surprise.

“Three of the 77 tubal ligation deer gave birth to fawns,” Curtis said. “These three deer were recaptured and later were given ovariectomies. All three had ovarian anomalies, and at least one experienced tissue regrowth post-surgery.”

Even after the surgical removal of their ovaries, one of the three deer became pregnant again. It is not clear how this was possible. One supposition is that some ovarian tissue may have escaped the scalpel and regrown into a functioning ovary.

If we learned nothing from, Jurassic Park, we can’t dinosaurs, and deer, from reproducing. As Jeff Goldblum said, life finds a way.


I have an idea. Invite Justices Scalia and Kagan to Cornell Law School, and they’ll take care of the excess population, and entertain the students. Boom. (Pun intended).

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Oct 16, 2014

I am interviewed on ABC 13 about the Houston Pastor Subpoena Case

Yesterday I was interviewed by the local ABC affiliate about a story that has since gone national–the City’s decision to subpoena pastors for copies of any sermons discussing “homosexuality.”

Here are my quotes:

South Texas College of Law Professor Josh Blackman says the current wording of the subpoena is definitely problematic.

“If the subpoena is narrowed I think that would be much better, but to the extent they’re still asking about sermons, that may have First Amendment problems depending on how broad it is,” said Blackman.

Feldman says that when the city responds to the response of the subpoena, it will revise the wording and narrow the scope. Whether that will satisfy the critics remains to be seen. Woodfill says he didn’t feel like anything said from the pulpit should be part of the lawsuit.

Blackman says in his opinion, the additional controversy on this issue could have been avoided, if the attorneys working for the city were more precise.

“I think if the city had taken the care about why they’re going after these four or five preachers it would be much less blundersome. Now it seems the city didn’t even know what they’re requesting in the first place and dialing it back.”

Allow me to elaborate. The City is represented pro bono by Susman Godfrey, one of the top litigation firms. They know what they are do. It would have been legal malpractice for them to subpoena the pastors without the City’s permission. I think the Mayor and City Attorney are now parsing words, and saying they didn’t approve the precise language. While this may be technically true, it is a shallow defense. They no doubt agreed to subpoena non-parties, and wanted to find out whether any instructions were provided concerning the referendum process. It is unavoidable that this would include “sermons.” These subpoenas should be withdrawn, and if not, quashed, with attorneys fees.

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Oct 16, 2014

$680,000 House Built on Wrong Lot

house-lotApparently, cases like Howard v. Kunto do happen in real life! This story proves the value of an accurate survey.

Six months after building a large custom house with an ocean view, Missouri residents Mark and Brenda Voss learned of a big problem – it’s on the wrong lot.

Their three-story vacation rental house with an estimated construction value of $680,000 actually sits on the lot next to the one they own in the gated Ocean Hammock resort community.

How did this happen? A mistaken survey.

The Vosses, who own 18 other residential lots in the Hammock Dunes master-planned community, paid $160,000 for one with a street address of 23 Ocean Ridge Blvd. North in June 2012, according to Flagler County property records. They hired Keystone Homes to design and build a 5,000-square-foot house there to use as a vacation rental managed by Vacation Rental Pros in St. Augustine.

The builder and Voss each say the error can be traced to the first survey in 2013. East Coast Land Surveying in Ormond Beach misplaced stakes, and the foundation survey and other documents and building activity were based on the error. During construction, dozens of subcontractors arrived each day to work at the wrong lot. And a final survey failed to note the error.

“We require a preliminary plat, foundation and final survey and they all indicate it’s the right lot where the house sits,” said Mark Boyce, Flagler County’s chief building official. “We rely on the surveyor. They are state licensed professionals and we count on them to get it right.”

Calls to East Coast Land Surveying last week were unreturned.

It was another survey who discovered the problem.

It wasn’t until September, six months after the Voss house was completed, that a survey crew working nearby uncovered the error and notified the community manager, who then called Keystone Homes.


And because they are aware of this error, there is no chance they could ever claim an adverse possession.

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Oct 15, 2014

Terrorists Love Waiving Miranda Rights

Apparently, it’s not just teens who waive their right to counsel during interrogations. The Times reports that captured terrorists talk willingly and proudly!

When Osama bin Laden’s son-in-law, who encouraged jihad against the United States, was arrested and flown from Jordan to this country last year, it might have seemed unlikely that he would be willing to say much.

But whatever reticence he might have had was quickly lost.

“I am willing to tell you anything, and will not hold back,” he said. He soon waived his Miranda rights, according to an F.B.I. summary of his interrogation. He also said, “You will hear things of Al Qaeda that you never imagined.”

The defendant, Sulaiman Abu Ghaith, who was sentenced to life in prison last month, offered a trove of information, some of which was later used against him in court.

And he was far from alone. …

Faisal Shahzad, the Pakistani immigrant who tried to detonate a car bomb in Times Square in 2010, spent two weeks being questioned about “sensitive national security and law enforcement matters,” after waiving his right to a lawyer and a speedy court appearance, the government said. He laterpleaded guilty and was sentenced to life in prison.

In his book, Leon Panetta explained that after the Underwear Bomber was Mirandized, he confessed and told everything. Panetta made it seem like good police work.

Less noted was what happened after Abdulmutallab was informed of his right to remain silent and to have a lawyer. After first shutting up, he then relented and talked at length. It was Abdulmutallab who revealed that Anwar al-Awlaki had personally sent him on his terrorist mission. And it was Abdulmutallab who told FBI agents that the person who made the bomb that he carried in his underwear that day was Ibrahim al-Asiri, brother of the young man who had tried to kill Prince bin Nayef. Those statements helped us better understand the workings of Al Qaeda in Yemen and ultimately led to Awlaki’s elimination. Importantly, investigators coaxed those admissions from Abdulmutallab without duress. He was not denied sleep or stripped naked, much less waterboarded. His confessions were the result of patient, clever interrogation of a suspect who had been read his rights and who nevertheless elected to cooperate with skillful questioners— proof that civil liberties and expert, aggressive investigations can and do coexist.

Or maybe they were just terrified of being waterboarded at a Black Site.

Some defendants in the civilian court system cite the specter of the government’s methods of torture, like waterboarding, at secret C.I.A. sites, for the extraction of information.

Nazih Abdul-Hamed al-Ruqai, an alleged Libyan Qaeda operative who was captured last year in Tripoli, waived his rights and gave an incriminating statement while being questioned by the Federal Bureau of Investigation, prosecutors have said.

He has pleaded not guilty and moved to suppress his statement on the grounds that it followed “countless hours of abusive interrogation” by the C.I.A. that left him confused, afraid and vulnerable to being pressured into waiving his rights, his lawyer wrote in a court filing.

“I was convinced that I would end up in one of C.I.A.’s black site torture prisons,” Mr. Ruqai, whose nom de guerre is Abu Anas al-Libi, said in a separate filing. By the time he spoke to the F.B.I., he said, his ability to make a voluntary decision about whether to speak “was long since gone.”

Prosecutors say that Mr. Ruqai’s statement was made only after he “knowingly and voluntarily waived his Miranda rights.” A judge is holding a hearing on the matter on Wednesday.

Fascinating and disturbing report.

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Oct 15, 2014

Study: Interrogated Teenagers Confess, Don’t Ask For Lawyers

Whenever I address any high school students, the first, middle, and last thing I tell them, is that if they are ever arrested to demand a lawyer immediately and not talk to the police without one. I even recorded this ultra-hip YouTube video teaching this lesson. Unfortunately, not enough teenagers heed this advice.

The Times reports on a new study about teenagers who are interrogated–none ask for lawyers, many make confessions or incriminating statements:

What none did, however, was exercise his constitutional rights. It was not clear whether the youths even understood them.

Therefore none had a lawyer at his side. None left, though all were free to do so, and none remained silent. Some 37 percent made full confessions, and 31 percent made incriminating statements.

These were among the observations in a recent study of 57 videotaped interrogations of teenagers, ages 13 to 17, from 17 police departments around the country. The research, published in Law and Human Behavior, adds to accumulating evidence that teenagers are psychologically vulnerable at the gateway to the criminal justice system. Youths, some researchers say, merit special protections.

The study shows that police, as they often do, are allowed to lie, but the teens don’t know this. Whenever I tell teenagers that the police can and do lie, they are appalled. Remember when they taught us in school that we should always trust the police. Ha!

Teenagers, he added, are also less likely than adults to know that the police can lie during interrogations.

“The police often promise kids things in the present. ‘If you just tell me you did it, you can go see your mom,’ ” he continued. “And because the brain’s reward systems are hypersensitive during adolescence, that immediate reward of confessing will trump the thinking of, ‘What will happen when I come back to court in a month?’ ”

Moreover, research shows that teenagers aged 15 and younger will unwittingly comply with authority figures. They are very suggestible, so that during an interrogation, they are more likely than adults to change their answers in response to interviewers.

Also, I make sure to tell the teens that they demand a lawyer, not just their parents. Why? Their parents have no clue either.

In Dr. Cleary’s study, only 12 suspects were accompanied by parents during portions of the interviews, whose duration ranged from six minutes to five hours, with the average about 45 minutes.

But if parents are not legally savvy, their presence may not serve young suspects well.

In the videos, five parents remained largely silent. Some lectured their children and then questioned them, taking on the interrogator’s role. A few parents urged their children to come clean, inadvertently sealing their fate.

Parents have conflicting roles, Dr. Cleary said. “They want to defend their children against accusations of wrongdoing. But we also socialize children to obey the law and tell the truth.

“Some parents might have felt compelled to use the situation as a teachable moment, or they might have felt their parenting skills were being threatened.” Dr. Cleary said. “It’s not fair to put parents in that situation, particularly without a lawyer.”But how do parents balance encouraging children to respect authority against the harm that can befall them by speaking with interrogators?

Dr. Steinberg suggests that parents tell teenagers: “If you’re being questioned by police because they think you’ve done something bad, say you need to talk to your parents first.” Parents can decide whether to call a lawyer.

No. You always call a lawyer. Even if your kid is in trouble, your first duty as a parent is to make sure the child is adequately represented. Parental punishment can always come later.

The Court recently held in J.D.B. v. North Carolina that age was a relevant factor in deciding whether a person is in custody for purposes of Miranda. Children should always know that they are required to ask for a lawyer.

Watch the video!

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Oct 14, 2014

Houston City Attorney Subpoenas Pastor Sermons About Equal Rights Ordinance

Earlier this year, the Houston City Council enacted the Equal Rights Ordinance, that provides certain legal protections for LGBT people. In response to this ordinance, a repeal effort was launched, supported mainly by religious leaders in the Houston community. Though, ostensibly enough signatures were gathered, the City Attorney invalidated many of them, and found the referendum failed. Then, supporters of the referendum challenged that decision in state court. Houston then removed the case to federal court.

The Houston Chronicle reports on the latest development in this saga–during discovery, the Houston City Attorney has subpoenaed sermons given discussing the equal rights ordinance.

City attorneys issued subpoenas last month during the case’s discovery phase, seeking, among other communications, “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.”

The subpoenas were issued to several high-profile pastors and religious leaders who have been vocal in opposing the ordinance.

The article notes that the Alliance Defending Freedom is on the case, and moving to quash the subpoenas. I have not seen any of the papers, but I suspect they raised a Free Exercise challenge, arguing that these subpoenas intrude on church matters, and can be used to chill sermons.

This issue often comes up when Priests politic from the pulpit, and opponents argue that their tax-exempt status should be repealed. But this subpoena seems really broad, as it requests any sermons related to “homosexuality.” That is a topic priests often discuss, totally apart from the Equal Rights Ordinance. This subpoena seems like a really bad idea, and potentially unconstitutional.

Update: The Motion to Quash is here.

2. The discovery requests served on the Nonparty Pastors do not comport with these requirements of Texas law. They are not reasonably calculated to lead to the discovery of admissible evidence, they are overly broad, irrelevant, and cause undue burden or harassment.

3. Additionally, the discovery requests demand materials that are protected by the First Amendment privilege governing discovery of nonpublic documents and communications relating to a political campaign and political strategy.

4. Also, the discovery requests demand materials that are protected by the deliberative-process privilege, the attorney-client privilege, and the work-product doctrine.

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Oct 14, 2014

Breaking: 5th Circuit Stays Voting ID District Court Decision, Citing Recent SCOTUS Decisions Maintaining Status Quo

Judge Clement, joined by Judges Brown and Costa (in judgment) have put on hold the district court’s order in the Texas Voter ID case. Citing Purcel v. Gonzales, the court aimed to avoid creating uncertainty so close before an election. The court cited the recent appeals to the Court from North Carolina, Ohio, and Wisconsin, as proof of this principle:

The Supreme Court has continued to look askance at changing election laws on the eve of an election. Just this term, the Supreme Court halted three Court of Appeals decisions that would have altered the rules of this fall’s general election shortly before it begins. See Frank v. Walker, 14A352, 2014 WL 5039671 (U.S. Oct. 9, 2014); North Carolina v. League of Women Voters of N. Carolina, 14A358, 2014 WL 5026111 (U.S. Oct. 8, 2014); Husted v. Ohio State Conference of N.A.A.C.P., 14A336, 2014 WL 4809069 (U.S. Sept. 29, 2014).

The court discerns a pattern:

While the Supreme Court has not explained its reasons for issuing these stays, the common thread is clearly that the decision of the Court of Appeals would change the rules of the election too soon before the election date. The stayed decisions have both upheld and struck down state statutes and affirmed and reversed district court decisions, so the timing of the decisions rather than their merits seems to be the key.3 Moreover, Justice Alito’s dissent from the stay in Walker casts some light on the Court’s rationale: “There is a colorable basis for the Court’s decision due to the proximity of the upcoming general election. It is particularly troubling that absentee ballots have been sent out without any notation that proof of photo identification must be submitted.” Frank, 2014 WL 5039671, at *1 (Alito, J., dissenting).

I will draw your attention to the concurring opinion of Judge Costa, who seemed troubled by the law, but felt bound by the Court’s three recent decisions involving North Carolina, Ohio, and Wisconsin, which maintain the status quo before an election:

GREGG COSTA, Circuit Judge, concurring in the judgment:

The district court issued a thorough order finding that the Texas voter ID law is discriminatory. We should be extremely reluctant to have an election take place under a law that a district court has found, and that our court may find, is discriminatory. As always, however, we must follow the dictates of the Supreme Court. In two recent decisions, it stayed injunctions issued based on findings that changes in an election law were discriminatory. See North Carolina v. League of Women Voters of N. Carolina, 14A358, 2014 WL 5026111 (U.S. Oct. 8, 2014); Husted v. Ohio State Conference of N.A.A.C.P., 14A336, 2014 WL 4809069 (U.S. Sept. 29, 2014). It also lifted the Seventh Circuit’s stay of a district court’s order in place since the spring that enjoined Wisconsin’s voter ID law. See Frank v. Walker, 14A352, 2014 WL 5039671 (U.S. Oct. 9, 2014). I agree with Judge Clement that the only constant principle that can be discerned from the Supreme Court’s recent decisions in this area is that its concern about confusion resulting from court changes to election laws close in time to the election should carry the day in the stay analysis. The injunction in this case issued even closer in time to the upcoming election than did the two out of the Fourth and Sixth Circuits that the Supreme Court recently stayed. On that limited basis, I agree a stay should issue.

I think this is effectively the votes of Justices Breyer and Kagan, who voted for a stay, but likely won’t vote for North Carolina on the merits.

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Oct 14, 2014

FantasySCOTUS is Back! Win Cash Prizes, Beat {Marshall}+, and Unlock SCOTUS Badges

We have launched the 6th Season of FantasySCOTUS, and this is the best competition yet. This year, FantasySCOTUS is sponsored by Thomson Reuters, and is operated by my colleagues at LexPredict, a legal analytics and service provider. If you’ve played before, sign up and play again. If you haven’t we have three new reasons to join.

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For the first time, thanks to our good friends at Thomson Reuters, we are offering significant cash prizes,  sponsored by Thomson Reuters.

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Beyond the grand prizes addition, we will offer Amazon gift cards, between $25 and $100, for making the most predictions with the highest accuracy.

2. Man v. Machine Competition

Marshall-AnimatedMy colleagues developed a revolutionary algorithm that can accurately predict Supreme Court cases. We call it {MARSHALL}+, after Chief Justice John Marshall.  This Term, {MARSHALL}will be competing against the players of FantasySCOTUS in a legal Man v. Machine contest.  It’s like IBM’s Watson on Jeopardy, except with the Supreme Court.  And we need your help.  By making predictions in all of the cases this term, you will contribute to the most sophisticated Supreme Court forecasting project of all time – with a shot at winning cash prizes to boot.

You can see all of our predictions in real time at the Prediction Tracker.

3. Unlock SCOTUS Justice Badges

If cash prizes and beating a computer were not enough incentives, if you make predictions, you can unlock your very own Justice Badges. Here are the badges for Chief Justice Roberts, Justice Scalia, Justice Kennedy, and (almost) everyone’s favorite, Justice Ginsburg.


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Sign up today!

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Oct 14, 2014

Scalia, Thomas, and Ginsburg Dissental on “Substantive Unresonableness” Case: “This has gone on long enough”

You don’t see this every day.  Justice Scalia, joined by Justices Thomas and Ginsburg, dissented from the denial of certiorari on a substantive unreasonableness sentencing case:

A jury convicted petitioners Joseph Jones, Desmond Thurston, and Antwuan Ball of distributing very small amounts of crack cocaine, and acquitted them of conspir- ing to distribute drugs. The sentencing judge, however, found that they had engaged in the charged conspiracy and, relying largely on that finding, imposed sentences that petitioners say were many times longer than those the Guidelines would otherwise have recommended.

Petitioners present a strong case that, but for the judge’s finding of fact, their sentences would have been “substantively unreasonable” and therefore illegal. See Rita v. United States, 551 U. S. 338, 372 (2007) (SCALIA, J., joined by THOMAS, J., concurring in part and concur- ring in judgment). If so, their constitutional rights were violated. The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, “requires that each element of a crime” be either admitted by the defendant, or “proved to the jury beyond a reasonable doubt.” Alleyne v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3). Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, Apprendi v. New Jersey, 530 U. S. 466, 483, n. 10, 490 (2000), and “must be found by a jury, not a judge,” Cunningham v. California, 549 U. S. 270, 281 (2007).* We have held that a substantively unreasonable penalty is illegal and must be set aside. Gall v. United States, 552 U. S. 38, 51 (2007). It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge.

Here is the conclusion:

This has gone on long enough. The present petition presents the nonhypothetical case the Court claimed to have been waiting for. And it is a particularly appealing case, because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense. Petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs. The sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them. The Guidelines, petitioners claim, recommend sentences of between 27 and 71 months for their distribution convictions. But in light of the conspir- acy finding, the court calculated much higher Guidelines ranges, and sentenced Jones, Thurston, and Ball to 180, 194, and 225 months’ imprisonment.

On petitioners’ appeal, the D. C. Circuit held that even if their sentences would have been substantively unreasona- ble but for judge-found facts, their Sixth Amendment rights were not violated. 744 F. 3d 1362, 1369 (2014). We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment—or to eliminate the Sixth Amendment difficulty by acknowledg- ing that all sentences below the statutory maximum are substantively reasonable.

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Oct 14, 2014

The Costs of Unanimity

One of the emerging themes on the Roberts Court has been a paramount interest in unanimity and the avoidance of partisan 5-4 splits. But this agreement–or what Dahlia Lithwick has deemed a faux unanimity–is not without costs. Perhaps the most recent example of this dynamic has been the Court’s decision to deny certiorari on the same-sex marriage petitions. As I noted, at some point between August and September, something changed, and (at least) five Justices who voted to enter a stay turned into (at least) six Justices who denied certiorari. It’s very hard to believe that this change was motivated entirely by an evolved view of the constitutional law issues at play–especially coming from four Justices who recent dissented in Windsor. The votes I think reflect this broader pattern in the Court’s preference to display unanimity, when it is in fact fractured on the inside.

Some may think this is a good thing, because they agree with the Court’s refusal to accept the SSM petitions, which paved the way for gay marriages in many states. (Jeff Sutton probably does not agree, as this passes him an increasingly weighty burden that is more properly placed at One First Street). Others may think this is a good thing, because they don’t want the Court to be perceived as partisan, and issue a series of divided 5-4 decisions. Why shouldn’t the Justices pretend to agree even if they don’t?

I take neither position. If the Justices don’t agree, they shouldn’t vote together. These nine individuals were nominated to be Justices, and interpret the law as they saw it (I’ve watched the confirmation hearings–we heard this message ad nauseum). When Justices not-so-transparently start putting other motivations ahead of how they view the law, in a quixotic effort to maintain unanimity, the ability to profess unanimity becomes very hard to justify. As bizarre as it sounds, I would prefer a sharp 5-4 split where I know the Justices believe what they voted, and the pros and cons of a position can be laid bare, to a superficial 9-0 split, where it is painfully obvious the Justices don’t all agree, and they took some wishy-washy middle of the ground route that satisfies no one–McCullen v. Coakley for example.

Consider NFIB. I’m often asked on the book tour whether the Chief Justice believed in his vote. I answer with a qualified yes–I’m sure he believed his position was the right one, based on factors endogenous to the commerce and necessary and proper clauses. (We know this because he spent page after page explaining why this law is not actually a tax, and fails under commerce and necessary and proper). I also suspect he believes his decision to deny certiorari was also the right one, based on factors endogenous to the due process and equal protection clauses. (We know this because of his Windsor dissent not two years ago). But it’s hard to imagine that either opinion was not driven by his pledge to strive for unanimity. But, denying certiorari looks like a clear case of politicking, rather than a genuine change in the view of constitutional law. In my mind this is more injurious to the Court in the long-term, than the Justices dissenting from the denial of certiorari, if that is what they believe.

I think this approach sets a dangerous precedent going forward for the Roberts Court. Sooner rather than later the costs of unanimity will become clearer, as the Justices continue setting aside what they clearly see as the legal solution, by focusing on other factors, which create just as much of an appearance of partisanship.

Richard Wolf, who interviewed me about this topic last week, summarized my position into two quotes in the USA Today article titled.

Here are they are, with the complete context above:

But eventually, many on the right say, the court’s conservatives must stand and fight, if only to make clear their view of the law.

“If you’re a judge, you were put in the position to interpret the law as you see fit,” says Josh Blackman, a conservative legal blogger and assistant law professor at South Texas College of Law. “I think this is a very dangerous pattern. … You put aside your own jurisprudence. You put aside your own view of the law.” …

For that reason, much of the criticism has focused on Roberts, the former Reagan administration official and federal appeals judge who sided with the liberals on Obamacare.

“The chief justice has this preference for showing unanimity and not showing divisiveness,” Blackman said. “The pattern is always avoid a fractured 5-4 by capitulating. That doesn’t bode well for the future.”

I usually can’t explain myself fully in two quotes, so I hope this post explains my thoughts in depth.



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