12 May 2010

A Round Tuit (31)

A Round Tuit

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.


Ours would be an ideal government (or as close to it as is reasonably possible) if laws were adopted only when no alternatives exist, only to the extent absolutely required, and never in the immediate aftermath of a notorious event or tragedy, when public passions are at their zenith. Needless to say, ours is not an ideal government. Rather, we have what President Lincoln lyrically referred to as a "government of the people, by the people, for the people"; he meant that in a good way of course, but when "the people" are fearful and angry, government's first impulse is to "do something" and usually it's something stupid and dangerous. In Civil Disobedience, Henry David Thoreau aptly observed:
I heartily accept the motto, "That government is best which governs least"; and I should like to see it acted up to more rapidly and systematically. Carried out, it finally amounts to this, which also I believe— "That government is best which governs not at all"; and when men are prepared for it, that will be the kind of government which they will have.
Sadly, in the wake of the failed Times Square bombing carried-out by Pakistani-born American citizen Faisal Shazad, we demonstrated again that we are not prepared to demand a measured, dispassionate government. President Roosevelt said, "the only thing we have to fear is fear itself — nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance." Though speaking of economic fears during the Great Depression rather than fears for physical security, he was right in the broadest sense. Unfortunately, fear scares the hell out of us and we happily gave into our fears after Shahzad's largely ineffective act.

It was widely-reported after Shahzad's arrest that he was given Miranda warnings. That he was entitled to these is indisputable — he is an American citizen who was arrested on American soil; rhetoric from several Republicans, including 2008 presidential nominee Senator John McCain, targeted the Miranda requirement (ostensibly just in these unusual circumstances), while Democratic Senator Joseph Lieberman, the vice-presidential nominee in 2004, suggested that terrorism suspects like Shahzad should be stripped of their American citizenship. It was truly a shining moment in the long history of governmental pandering to the baser instincts of the electorate. A number of legal bloggers discussed the political criticism of the Miranda Rule.

Brian Tannebaum noted that many legislators and commentators were outraged to find that there is no reasonable argument that Shahzad was not entitled to Miranda warnings:
They were stunned. Stunning.

I don't know about you, but if Shahzad confesses, or gives information, I'd like a jury to evaluate it, instead of a court saying years from now that it's inadmissible and as a result the case is weakened to the point that there can be no adjudication on the merits.

But I'm about the law, I'm not about the grandstanding.

I fear terrorism. I also fear politicians who believe the Constitution has exceptions which do not exist, and that those who follow the Constitution and Supreme Court precedent, are anti-American.

Shahzad is an American citizen, being prosecuted in an American court.

The big secret, is that any cop worth his badge, reads Miranda to a suspect. The good ones get the confession, regardless.
Discussing Senator McCain's suggestion that Miranda warnings should have been withheld "until we find out what it's all about", Scott Greenfield wrote that creating exceptions for particularly bad acts and actors has time and again propelled us down a slippery slope:
A host of other politicians supported this position, with equally compelling reasoning, primarily along the lines that only Eagle Scouts deserve constitutional rights. As it happens, Shahzad rendered the argument moot when he was given the warnings and continued to tell the government everything he knew. Happy Dance. News reports say that he's still talking even as I write, which should come as no surprise given that he was a marketer. Maybe he's just trying to network and be genuine. Maybe he's laying the groundwork for the Shahzad brand. No matter. He keeps talking and they keep listening.


Assuming that you already know the Miranda basics, that it only kicks in on custodial interrogations (which is itself rife with issues, but not for today), the Supremes slid down the exception slope with Quarles, crafting a "public safety" exception....


Then there's Seibert, where the court held that the Missouri two-step was wrong, but as long as police didn't intend to scam the defendant out of his rights (as in, that subjective motivation that was wrong, wrong, wrong to consider in Quarles is now the saving grace for the police), it was cool with them. Slip-sliding away.
Orin Kerr uncritically explained the "detailed maze of Miranda doctrine" and the choice it presents to law enforcement; in a nutshell, risking exclusion of incriminating statements given pre-warning, police try to guess whether their suspect is a chatty sort or not. If a suspect is likely to remain silent if advised he may do so, skip the Miranda warnings, get an inadmissible statement, and develop admissible evidence from it; if a suspect is likely to talk regardless whether he knows his Miranda rights or not, go ahead and give him the warnings and preserve the admissibility of his statements. Kerr concludes that in Shahzad's case, FBI agents made a prudent gamble to Mirandize their suspect:
Based on what we know, it sounds like the FBI made a good judgment call here. Shahzad is a U.S. citizen who has been living in the United States and was caught in the United States for a crime committed in the United States: Surely this is a case for federal court.


The countervailing concern is that perhaps Shahzad would invoke his Miranda rights and then stop giving the FBI the information they need. Perhaps obtaining the information was more important than getting a statement that would be admissible in court. But even if that’s true, that’s a call that the FBI could make on the ground. Consider the facts. The FBI had taken Shahzad into custody and started to question him initially without Miranda warnings under the public safety exception. Let’s imagine that Shahzad’s demeanor left the impression that he might speak to the FBI without Miranda warnings but that he might clam up if read the warnings. If that were the case, the FBI could lawfully make the decision of whether to continue to question Shahzad without Miranda warnings or whether to give him the warnings and obtain a waiver. In other words, the FBI could make the call on the ground based on his conduct.


Shahzad turned out to be a talker, so the FBI gave him the warnings, got his waiver, and then continued to get more statements from him — all of which will be admissible in federal court.
Greenfield was critical of Attorney General Eric Holder's expressed support for changes to the Miranda Rule (at least as applied in terrorism cases):
There's no word on what exactly Holder is talking about when he says that the adminstration will expand the public safety exception. Will there be changes to the warning itself, such as "you have the right to remain silent, and we have a waterboard right here with your name on it," or will it be that Miranda warnings need only be given when the TV cameras have moved on to the next story of public fascination?

Either way, the concept that there is a new enemy to America that transcends the system that now exists and requires new rules because, well, this is War, will permeate our approach to all threats, real and perceived. We're always at war with something these days, and by using the jargon of war to explain our situation to a public ridden with fear, thus muddying up the thought process and creating the appearance of distinctions that justify, if not compel, new approaches for these new threats, our war against the terrorists today will be our war against somebody else tomorrow. Just as the war against crime, against drugs, brought us to this point. Full of fervor. Full of fear. We must fight the enemy.


We've tried suspending the rules, along with our ability to reason, in the past, and it has always come back to shame us for our disgraceful lack of fortitude in the face of a perceived threat. Anybody remember Japanese internment camps during WWII?
While Greenfield and others discussed the opportunistic use of the Shahzad case to contract Miranda, Brian Cuban criticized the suggestions of some that Shahzad be tried for treason:
[In Ex Parte Bollman, Chief Justice John Marshall] wrote that the crime of treason should be strictly construed writing: “the crime of treason should not be extended by construction to doubtful cases”


What constitutes “hostilities against the United States”? There is no doubt that the act of the Times Square Bomber was hostile but where they hostilities against the United States in the manner contemplated in the “levy of war” as intended by the Framers? The most telling quote again by Justice Marshall in the Bollman case:
Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason. The wisdom of the legislature is competent to provide for the case; and the framers of our Constitution . . .must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation.
In other words, when there are laws in place to deal with crimes, we should use those and not treason which should be strictly construed. We should not force fit the law of treason into situations based on our emotions and passions at the heinousness of the crime.
Norm Pattis suggested that if "treason" is an applicable label for anything in the Shahzad matter, it's applicable to Senator Lieberman's efforts to strip the citizenship rights of terrorism suspects:
Senator Joseph Lieberman, perhaps angling for leadership of a new political party for our times, the Homeland Party, told reporters we need legislation to strip American citizens of their citizenship and the protections of the federal constitution against such things as abusive police procedures when they are suspected of terrorist sympathies.

Sadly, no one accused Lieberman of treason when he uttered this swill. We took it all in stride. Tough times require tough measures. So if we need to abandon first principles to feel safe, what's the harm? America, America, uber alles, right?

Read my words: There will be car bombs in America. More people will die. This seems inevitable in a world filled with hatred. Make no mistake about it, we are hated, even as we hate. We are not a nation apart. We are no city on a hill. We are no longer protected by geography from the sorrow that afflicts other nations.

The only real question is when horror visits again will we really sacrifice core constitutional values so quickly? Will Big Brother become our best friend? Will we slam shut the doors, ostracize folks without trial, torture in the name of freedom? If we do, who will protect us from ourselves?


Government has the power to draw lines, making the lives of the other unbearable.

But what happens we become the other?
Though most news was bad news, there was at least one glimmer of hope this week; Gideon discussed a positive development (in New York) concerning one of the rights in the familiar Miranda warnings — the right to counsel established in his namesake, the Gideon decision:
The argument was in two parts: 1) That the public defender system is so under funded that lawyers are provided in name only and that results in a de facto denial of counsel (the Cronic claim); and 2) That the public defender system is so underfunded that there is no way these lawyers provide effective representation of counsel (the Strickland argument).

The court permits the first to proceed while rejecting the second. The Court seems bent on ensuring that these particular plaintiffs don’t backdoor in their ineffective assistance claims, because that is necessarily a post-conviction, fact specific inquiry, whereas the institutional denial of counsel touches on the basic obligation of a State to provide counsel at all.
Collateral preconviction claims seeking prospective relief for absolute, core denials of the right to the assistance of counsel cannot be understood to be incompatible with Strickland. These are not the sort of contextually sensitive claims that are typically involved when ineffectiveness is alleged. The basic, unadorned question presented by such claims where as here the defendant-claimants are poor, is whether the State has met its obligation to provide counsel, not whether under all the circumstances counsel’s performance was inadequate or prejudicial.
It is that last part that is truly noteworthy about this decision: that a court has finally acknowledged that Gideon’s promise may be going unfulfilled and that states cannot prop up a warm body next to the defendant and be allowed to pass the blush test. Gideon did not make a hollow promise. Time to hold states to their obligations.
As long as we're discussing Miranda warnings, Jamie Spencer would appreciate it if the talking heads on television (in this instance, CNN's Jeffrey Toobin) would explain it properly:
[A]s every not-on-TV-because-I’m-too-busy-in-the-actual-courtroom criminal defense attorney knows, Miranda only applies to custodial interrogation, and Toobin’s explanation completely fails to touch on two separate issues, namely: (a) custody and (b) interrogation. Granted, the whole discussion is in the context of Faisal Shahzad, who was already in custody, and presumably being interrogated, yet it’s a slip shod explanation.


What Toobin leaves out [in discussing the Shahzad case], the custody part, and the interrogation part, is exactly the portion of Miranda that 99% of the public misunderstands. If you’ve been in the same room as a TV since Kojak first aired, you already know the “You have a right to remain silent, anything you say can and will be used” spiel. But it’s the what you don’t part that might hurt you. Or, perhaps, if you wanted to be a decent TV analyst, the part of Miranda that folks don’t know is the part that needs explanation.

All sorts of things you say can be used against you in court, without the need of a Miranda warning. In fact, since most cases involve a police investigation and then an arrest, and then no more investigation after the arrest… Miranda is completely inapplicable. In the majority of criminal cases.

The police make sure of it. If there’s ever a need to question a suspect, they just invite him on down to the police station. Have him spill his guts. Then they let him walk out of the lion’s den, and go prepare the warrant. Tada – not custody.

Also, interrogation is an important component. Basically, it has to be in response to questioning. If, for example, Shahzad is volunteering the information (“Now that you’ve arrested me, let me tell you my entire plan” – like a villain leaving James Bond hopelessly tied to an automatic death machine that doesn’t work) then it might be custody, but not necessarily interrogation.

I know I’ll spend the rest of my career explaining to DWI clients (for example, although they do seem to bring it up quite a lot) why it doesn’t help that they “never read me my rights”. The fault lies squarely with those who continue to perpetuate the myth that “nothing you say can be used against you in court unless you first have been read your Miranda rights”. Thanks a lot Toobin.
It's been recommended many times before in the legal blogosphere that when the police come calling, you keep your right to remain silent in the forefront of your thoughts and invoke it early and often. Your government and neighborhood police are not your friends; by and large, we're well-served to assume that any contact with the authorities is inherently adversarial and to guard ourselves accordingly and despite any indications to the contrary.

Elie Mystal reported an interesting insight into the real world of police work, courtesy of a New York policeman who surreptitiously recorded the day-to-day discussions of his colleagues. His recordings do not paint a picture of friendly neighborhood cops on the lookout for evildoers; rather, these show police who either assume that we're all evildoers or simply don't care and underscore our need to watch the watchmen:
When dealing with cops, it’s important to understand that they are under ridiculous pressure … to hassle people:
They reveal that precinct bosses threaten street cops if they don’t make their quotas of arrests and stop-and-frisks, but also tell them not to take certain robbery reports in order to manipulate crime statistics. The tapes also refer to command officers calling crime victims directly to intimidate them about their complaints.

As a result, the tapes show, the rank-and-file NYPD street cop experiences enormous pressure in a strange catch-22: He or she is expected to maintain high “activity”—including stop-and-frisks—but, paradoxically, to record fewer actual crimes.
I’ve already said that the most important lesson I learned in law school was to not talk to police officers. Since graduation, I’ve learned another important lesson: don’t get into the system. A friend of mine who clerked for judges in big city, urban environments, put it to me simply: “If you have an opportunity to run, run.”

Based on these tapes, you can see why a person would say that. Cops are looking for easy busts. Don’t make it easy for them — especially if you have done nothing wrong in the first place. Running makes you look guilty? Whatever. Cops looking to make their quotas also make you look guilty.
As Norm Pattis suggested above, it's all too easy for us to become "the other" whom we've allowed (if not encouraged) our government to vilify and our police to harass. When Karma comes calling — rightly or wrongly — one of the few protections we ourselves control is the right to clamp our jaws shut, ignoring the police's deceptions and our own worst fears, and to decline to speak the words which the state will use to condemn us.


As it became clear last week that an announcement was imminent, speculation reached an even more fevered pitch. Though Solicitor General and former Harvard Law Dean Elena Kagan had long been considered the front-runner for the nomination, late signs started to favor Judge Diane Wood. David Lat, noting that "in the past week and a half or so, we’ve felt a slight, almost imperceptible shift in the wind, in favor of Judge Wood", made the case for a Wood nomination. Lat suggested that as the most liberal of the leading nomination candidates, Wood would face the strongest resistance from Republican senators but would also do the most to rally Obama's somewhat dispirited liberal political base. Mike Sacks wrote that after the confirmation kerfuffle over Justice Sotomayor's "wise Latina" comments and considering that retiring Justice Stevens is now the Court's lone protestant, with the WASPy Wood "the left’s traditional identity politickers can be satisfied with another step towards the Bench’s gender balance while the right’s neo-identity politickers... can take a break from lamenting where their country has gone." Both were fine guesses — principled speculation in an atmosphere of wild speculation — and both were wrong. After Kagan was announced as the nominee, Julian Ku suggested a consolation prize for Judge Wood:
On the plus side, Judge Diane Wood is now free to consider that other great judicial job opening this spring: member of the International Court of Justice. Wood is more than qualified for the ICJ, and would be the first U.S. appellate court judge to serve on the ICJ, I believe. If she would accept such a nomination, it would be great for the ICJ since it would (no offense to past members of the ICJ) immeasureably raise its profile and prestige within the U.S. legal world (then again, this may not be a good thing). Having been passed over twice for the U.S. Supreme Court, perhaps she would be open to something new?
David Lat announced the nomination at Above the Law and predicted, as did many others, a swift and relatively uneventful confirmation in the Senate:
Kagan was confirmed as Solicitor General last year with 61 votes. It will be tough for the Republicans to rustle up enough votes to defeat her. The position of Solicitor General, the federal government’s primary advocate before the Supreme Court, is about as close as you can get to being on the Court. There’s a reason why the SG is sometimes referred to as “the Tenth Justice.” It will be difficult for Republicans to explain why Kagan was acceptable to confirm as Solicitor General but unacceptable to confirm as a justice.


[N]othing she has done in her year as SG would justify rejecting her as a SCOTUS nominee. Barring some unforeseen revelation, she will be confirmed. We suspect that Tom Goldstein’s prediction — made back in February, before Justice Stevens even announced his retirement — will come to pass: “On October 4, 2010, Elena Kagan Will Ask Her First Question As A Supreme Court Justice.”
Goldstein hasn't been idle since he made that prediction months ago. Indeed, we were well-prepared for this week's announcement by a 9,750-words-long essay published over the weekend by his team at SCOTUSblog, considering Kagan's past, present, and future, summarizing her qualifications, speculating on her jurisprudence, and predicting her easy confirmation. I'd say "go and read the whole thing" but for the fact that I dislike hypocrisy, particularly when I'm the hypocrite. As I didn't read the entire thing myself, I'll confine myself to recommending that you "skim the whole thing".

Goldstein's co-blogger Lyle Denniston summarized the Kagan nomination in fewer than 9,750 words — few enough that I could read the whole thing. He concluded:
For the time being, Kagan can anticipate that, on many of the heavy controversies that come before the Court, she may not have much opportunity to exert significant influence. The more committed of the Court’s conservative Justices have been having increasing success in drawing swing Justice Anthony M. Kennedy to join them in major cases, and that makes a five-Justice majority that simply may not need Kagan’s vote, even if it were available. Although known for her skills at persuasion, Kagan is but a fifty-year-old with no prior experience in shaping judicial majorities.

Though nominally taking the Stevens seat, she has very little chance, in her early years, of developing the capacity that he had so successfully mastered in drawing Justice Kennedy, sometimes surprisingly, to the liberal side.
It's been noted elsewhere that swaying Justice Kennedy's vote is a prime consideration in nominating Kagan; if so, wrote Darren Hutchinson, it's misguided:
First, it is unclear whether Kagan herself is a progressive or a political moderate, like Kennedy or O’Connor. Her academic writings just do not provide enough insight to place her definitively within a particular judicial camp.

Furthermore, supporters of the idea that Kagan can move Kennedy discount the substantial role that other factors play in shaping judicial opinion. The positions held by the Executive, Congress, social movements and voters all impact judicial decisionmaking, and according to the academic literature in this area, moderates are more susceptible to these external influences than others. Viewed in this light, Kennedy’s vote to uphold Roe could reflect the fact that a majority of voters believe in the right to terminate a pregnancy. Similarly, his vote against “partial-birth” abortion could relate to the fact that a majority of voters oppose late-term abortion.

Of course, Kennedy’s own ideology, Court precedent, the facts of each case, arguments of legal counsel, and debates with other justices likely influence Kennedy’s opinions as well. But the assertion that Kagan can serve as a consensus builder fails to acknowledge the host of other factors outside of debates with colleagues that substantially impact judicial opinion.

People who believe that Obama should appoint someone who can “flip” Kennedy have a limited understanding of the dynamics of judicial decisionmaking. They reduce it to an intellectual exercise where the “best argument” combined with grace and warmth dictate outcomes. Also, as Dalia Lithwick argues, liberal advocates of a Kennedy pal affirm a myth that “conservative judges closely read the Constitution and apply the law, while liberals stick a finger in the wind and then work the room.” Both camps, however, are motivated by ideology and external political factors. This reality makes the search for someone who can sway Kennedy a bizarre calculation for a nominee to the Supreme Court.
Many observers considered Kagan's record and found it lacking in some area or another. Of course, when looking for something in particular with any modern nominee, that something will generally be absent or a bit thin — such is reality in the post-Bork nominations era. Regardless, there were some gaps in Kagan's résumé which were more concerning than others. Eric Turkewitz looked at one:
There are three basic niches for a lawyer to be in:

1. Public service;
2. Acadmia; and
3. Private practice.

So I checked out Tom Goldstein’s 9750 Words on Elena Kagan... [a]nd I went looking for the private practice area, wanting to know if she had ever represented some individual, somewhere, in some kind of distress.


And here is what I found from Goldstein’s 9750 Words on Elena Kagan:
Upon completing her clerkship, in 1988, Kagan went to work as an associate at Williams & Connolly in Washington, D.C.
That was it, out of 9750 words. From there she went in 1991 to the law faculty of the University of Chicago. A three-year stint at BigLaw seems to be the sum total of her private practice.
Scott Greenfield was also troubled by the lack of experience in legal practice — particularly "trench" lawyering experience — in Kagan's background, but on the broader Court as well:
You would think that putting nine lawyers in a room, they would have to come up with more than 34 years of actual experience in the trenches. Nope. Not this bunch. It must be hard work to find that many lawyers with that little experience.


The disconnect between the politics of the Supreme Court and the reality of the trial court, or more to the point, the life of real people with the misfortune of finding themselves in court, is the wrong that the trench lawyer movement seeks to right. That presidents and senators pontificate in such a way as to make it politically expedient to avoid any lawyer with actual experience doesn't mean that putting another theorist (more or less) on the court is the solution.

There used to be real lawyers on the Supreme Court, but that was before every nominee underwent a political proctology exam, and when the other two branches in Washington played together a little better. Now that it's a life and death struggle for political hegemony from two political parties whose members can't be distinguished without a scorecard, the risk of nominating a real lawyer is far too great. There might be a tea party, or coffee klatch, or beer bash, because of it. We can't take the risk of doing something right.

With the practicalities of politics duly acknowledged, do we just give up and take the best we can push through? Not to say that Kagan is necessarily the best, or even any good, but she certainly appears to be capable of getting consent of the Senate after the requisite bashing for the television cameras. Of course, after approval, she could always hire a couple of real lawyer to show her where the courthouse is, explain what lawyers do in there and describe how people who didn't attend Harvard or Yale are forced to live with her decisions.

Instead, she's likely to hire a few clerks fresh out of law school. I wonder what schools they'll be from?
At least one commentator focused on Kagan's by-all-accounts-successful tenure as Dean of Harvard's Law School and suggested that running the school qualified her to run anything. Jamie Spencer was dubious:
The list of things that running Havahd Law School does not auto-qualify you for is almost infinitely longer than the list of things that it does. Here is the question and answer she gave last year in a questionnaire for the Senate Judiciary Committee for her nomination as Solicitor General, part 15 Legal Career, subsection (d):
State the number of cases in courts of record you tried to verdict or judgment (rather than settled), indicating whether you were sole counsel, chief counsel, or associate counsel.
I have never tried a case to verdict or judgment.

What percentage of these trials were:
1. jury;
2. non-jury.
Not applicable; see above.
That’s not just criminal, that’s civil too.
Norm Pattis, who's led the calls from trial lawyers in the blawgosphere for a nominee with courtroom experience, was disappointed by the politics-as-usual underlying Kagan's nomination:
Shame on you, Mr. President. Are the pressures in Washington so great that what was once the outsider's promise of hope has now, and so quickly, become little more than a tap-dancing mime? Any president could have appointed Elena Kagan. Her resume drips with prestige, power and privilege. She is a predictable and uninspiring choice.

There has been murmuring in the Senate that we need to break the Ivy league mold and look beyond the predictable corridors of power for a justice. Kagan ought not to be considered pathbreaking just because her nomination to the D.C. Circuit by President Clinton in 1999 failed.

But, I digress. I am bitter because when I go to court this afternoon to face a sentencing judge in a capital felony, I know that the work I do, the lawyers with whom I associate, the client I represent, are just another set of statistics to those atop the law's vast pyramid. I will struggle to be heard and know that what I say is mere verbiage in the barrel of the law's broken promises.

I took Obama seriously when he talked about change. His betrayal of that promise and transformation of it into a cynical farce has me wondering how long it will be until old wine skins finally burst. Elena Kagan? I suppose she'll do as well as one hundred other high-powered legal academicians might have done. But I had hoped for something better. I had hoped for a trial lawyer. What I go was another harmless error of a choice.
Nate Oman was concerned less with Kagan's lack of courtroom experience than he was with her lack of experience or scholarly interest in business:
With the exception of a brief stint in private practice, Kagan has spent her entire career either in government or else in academia studying the processes of government regulation. She shows little academic or professional interest in business. This is important because while public regulation makes up the bulk of the Court’s docket, private businesses are overwhelmingly the target of that regulation. Everything in Kagan’s career, however, suggests that she is intellectually geared to look at the regulatory process from the government’s point of view. For example, in law school I had an advanced seminar on administrative law from Kagan. It was an interesting class, mainly focused on the competition between bureaucrats and political appointees. In our discussions businesses were always conceptualized as either passive objects of regulation or pernicious rent-seekers. Absent was a vision of private businesses as agents pursuing economic goals orthogonal to political considerations. We were certainly not invited to think about the regulatory process from the point of view of a private business for whom political and regulatory agendas represent a dead-weight cost.
At the right-leaning Volokh Conspiracy blog, some saw Kagan as a relatively moderate choice by a liberal president, or at least the best those on the right could reasonably hope for. Ilya Somin wrote:
Barring some unforeseen revelation, I think Kagan is is likely to be better from any non-liberal point of view than anyone else Obama is likely to pick. Therefore, I don’t see much to be gained from aggressively opposing her nomination. Indeed, if administration opponents dig in and signal that they will wage all-out war against any plausibly liberal nominee regardless of her views, that will just increase the administration’s incentive to appoint hard-line left-wingers. If Democrats believe they can’t avoid a tough nomination battle no matter what they do, they will have little reason to go with relative moderates.
David Bernstein generally agreed, but cautioned conservatives against reading too much into Kagan's past good relations with conservative legal academics:
That’s all great, and from all indications she was a fine dean. But I’m reminded of the conservatives who attended Harvard Law with Barack Obama who lavished praise on him for actually listening to them [literally listening, not agreeing] and treating them with respect when he was editor of the Law Review. Let’s not confuse competence and basic human decency with anything more dramatic. The fact that such qualities are not always on display at places like Harvard doesn’t mean that those who display them deserve anything more than a basic acknowledgment of those qualities, nor that anything more should be read into it.
Elsewhere, Tom Smith wrote:
I am actually rather relieved by the nomination of Kagan. She is evidently open minded enough to have promoted the appointment of some conservative leaning law professors at Harvard, which is no small thing. In fact, I can't think of any other top five law school that has deliberately set out to correct at least a bit an ideological imbalance and then actually followed through. Has any other law school ever said, we don't have enough conservatives? ....Indeed perhaps I should have been rooting for a left wing ideologue as she would be less likely to influence the all important swing votes on the Court.... Discussion of her scholarship... suggests it is not bad at all; not that many articles, but the ones she did write sound like they were quite influential. It could be being a justice on the Court will be just the thing to allow her to become as prolific a writer upon the law as she would hope. And it's also true you don't necessarily want the most creative, academic types to be your judges. You should probably much rather have the Supreme Court consist of nine randomly chosen senior lawyers than you would the nine most cited members of the legal academy, at least if you had to live in the country they were judges of, rather than merely read their opinions.


I think the larger political issue is, does it make sense for the GOP to try to make the Dems expend political capital on getting Kagan confirmed, or not? If the answer is not, then I think job of the GOP in the Senate is to look at Kagan carefully, make sure there are no buried landmines, skeletons in closets, and so forth, enquire as to her judicial philosophy, and then vote.
Jonathan Adler took a look at some of her scholarship and found it impressive on the whole, if not entirely convincing in parts. Mark Tushnet felt that one of Kagan's articles concerning the rise of the Federal administrative state was especially praiseworthy:
I think this is an incredibly smart and insightful piece of work, and I've relied on it heavily in my own scholarship (see this article, for example). Kagan identified and gave a label to an important development in the contemporary administrative state, the absorption into the White House of actions formerly -- and formally -- attributed to administrative agencies (both executive branch agencies such as the Food and Drug Administration and "independent" agencies such as the Federal Communications Commission).

Simply seeing this phenomenon for what it was, was an important contribution to our understanding of modern government. But, in my view, there's much more to the article than that. As I see it, the development Kagan identified is an important part of a larger transformation of the structure of modern government, and fits into narratives about what political scientists call "American political development." Kagan points out, for example, that presidential administration is in part a response to political difficulties associated with divided government (and today, divided government seems to mean a Senate in which the President's party controls fewer than sixty seats). I've commented elsewhere that the proliferation of White House czars is consistent with Kagan's ideas about presidential administration. What her work does, that is, is give us a way of thinking about how contemporary government is shaped and reshaped by fundamental features of the political landscape.
Eugene Volokh, a noted First Amendment scholar, described Kagan's writing on First Amendment issues as "excellent" but found it difficult to predict Kagan's jurisprudence from these:
This is partly because her work is in large measure structural and theoretical, rather than focusing on specific constitutional controversies. And it is partly because even her articles that focus on such specific controversies, such as over so-called “hate speech” and pornography, are often more analytical (here’s how we should understand the law, and here are the pluses and minuses of various approaches) than prescriptive (here’s the rule courts should adopt). That’s a fine trait in an article — the analytical components are generally more useful to readers than the prescriptive components. But it does make it hard to predict just how the author would decide cases as a Supreme Court Justice.


My guess is that the likeliest bet would be to say that a Justice Kagan would be roughly where Justice Ginsburg is — generally pretty speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view, chiefly expensive speech related to campaigns and religious speech in generally available government subsidies. Not perfect from my perspective, but not bad, and no worse than Justice Stevens, with whom Justice Ginsburg largely agreed on such matters.
Jack Balkin found the hand-wringing over Kagan's academic record all beside the point; if her record is a bit thin in quantity (and he doesn't necessarily agree that it is), it's still enough to allow judgments to be reasonably formed:
Liberals and conservatives alike are worried about Kagan's politics once she becomes a Justice. They are pouring over her body of legal writings, scrutinizing elements of her career, and psychoanalyzing her from a distance. Journalists are busily constructing a story of her life to make her accessible to the general public, while her political opponents try to engage in various forms of character assassination or, at the very least, a death by a thousand cuts.

I find all of this dreary and tiresome. Apparently, however, it is how we have to do things these days. I can only express my sympathy (perhaps even empathy-- that forbidden word in discussions of the federal judiciary!) for the gauntlet that she will now have to run.

Elena Kagan is hardly a stealth nominee. She has worked in two Democratic administrations and been the Dean of a major law school. If you can't figure out her general sensibilities, you really haven't been trying very hard. It is true that we can't know in advance what she will do precisely in the October Term 2019, but that is true even of Justices with far more elaborate paper records.

Elena Kagan will be a fine Justice, and in time the equal, I fully expect, of anyone currently sitting on the Court. There is a long history of people who had not previously served as judges-- but had served in the executive branch--being appointed to the Supreme Court.
Whereas Balkin called the forthcoming confirmation hearings as a "gauntlet", another legal scholar has referred to them as "a vapid and hollow charade"; that scholar was Elena Kagan herself, in a 1995 article. Kashmir Hill suggested that for its value as a conservative's soundbite, a more careful review of the article indicates that the remark is not particularly damaging, criticizing the excesses committed by Senators of both parties in past hearings and arguing for changes which would elevate substance over style; moreover, Hill noted, Kagan has expressed more moderate views in years since:
Kagan has already distanced herself from her book review from the last decade. These remarks are not being unearthed for the first time. They came up when Kagan was being confirmed for Solicitor General in early 2009. At that time, she remarked: “I am . . . less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested.”

We imagine her views in 2010 are more in accordance with that statement from 2009, than her book review from 1995.
Daniel Solove remains critical of the confirmations process:
It used to be possible for the truly great jurists of their generation to be appointed to the Supreme Court, a capstone to their careers. But now it’s no longer possible because they are likely to be older and have taken positions on too many controversial issues. I think this is a shame.
He suggested term limits for Supreme Court justices and an easier Constitutional amendment process to reduce the Court's power and the overemphasis on the confirmations process.

Several legal bloggers found their analyses of Kagan's scholarship, professional experience, or politics to be somewhat colored by their personal experiences with her. Elie Mystal reminisced about his time as one of Kagan's Civil Procedure students at Harvard:
Professor Kagan massacred me intellectually, and brutalized my pride. I got some form of a B in her class (I honestly don’t remember if there was a modifier — I’ve tried to suppress those memories). Kagan was a frightening professor for those who wanted to match wits with the brightest legal minds in the world. For people like me, people who just wanted to get through law school with minimal mental damage, Kagan was nothing short of terrifying.


As a professor, Kagan was one of the last of a dying breed: a purely Socratic law school professor. With Kagan, there was no panel. There was no back-benching. She would just randomly call your ass to the carpet, and you had best be prepared.


Kagan hated unprepared students, but she reserved her harshest ire for people who showed up to her class late. She’d essentially stop the class, literally — she’d stop talking in mid-sentence. Then she’d wait impatiently for the student to assume their seat. And then make some caustic remark about the importance of timeliness.

But I’m educable. So I quickly learned that if I was going to show up to Kagan’s class five minutes late or unprepared, it was better to not show up at all.


I was pretty forthright about how I found Civil Procedure so boring I felt like I needed a defibrillator every time I walked into her classroom. She chuckled. It turns out Kagan has quite a sense of humor (so long as you are on time). She started quoting Thurgood Marshall, for whom she clerked, about how rules were the key to defending the rights of minority populations in this country. It was a compelling argument. I mean, it didn’t make me like Civ Pro, but it made me like Kagan a lot more. I realized she was a person, not a God that got strong on the tears of terrified 1Ls. She was just an average human who happened to enjoy the taste of fear.

I managed to make it through the rest of Civil Procedure without incident. But there were many other Kagan sightings during the brief moments of sobriety I experienced in law school. She’s a smoker (or at least was one), and I offered her a cigarette once (she didn’t need my charity). I almost knocked her over as she was coming out of liquor store once (the fault was mine). My greatest failure was that I never once got her to play poker with me (I hear she’s excellent at the game).
Sandy Levinson had the good fortune not to show up late or unprepared to one of Kagan's classes; as her former professor at Princeton and one of the professors who served under her at Harvard, his recollections of her are somewhat less traumatized than Mystal's:
I am incapable of detached objectivity regarding Elena Kagan. Not only was she a student of mine long ago at Princeton; far more importantly, she was consistently kind to me as Dean of the Harvard Law School and is responsible for the fact that I have been privileged to teach there over the past seven years when on leave from my regular duties at the University of Texas Law School. I think the world of her and think she will make an excellent Justice.
Smooth confirmation or no, the process begins in earnest shortly. While you won't go wrong just keeping SCOTUSblog on auto-refresh for the next few weeks or phoning Tom Goldstein and Lyle Denniston now and again just to shoot the breeze, if you're looking for a broader round-up of blawgospheric commentary on the Kagan nomination, I recommend Christine Hurt's guide to the "Kagan-o-Rama".

Now, let the games begin.

Odds n Ends Shop

This past Sunday was Mothers' Day here in the United States; in Afghanistan, the corresponding holiday is celebrated in early March. American moms are more patient, I suppose. To commemorate Mothers' Day, Mirriam Seddiq told her mother's story in a moving post:
My mother wasn't allowed to leave her house without her burqua after her tenth birthday. She was tall, tall enough for people to call a 'woman'. She had 10 years of childhood and not a minute more. That's more than a lot of Afghan girls got, but it still wasn't enough.

My mother was engaged to my father when she was 17. I used to ask her if she was excited when she got the proposal. She would laugh and say "oh yeah, so excited". It wasn't until much later that I realized that she didn't know who she was going to marry, just that a man had been chosen for her. My father was a well-educated man. He sent my mother to school in Kabul while he was finishing medical school there. She learned to hold a pencil, to read and write her name. She walked in the streets of Kabul without a burqua for the first time as an adult. Freedom was sweet.

My father left Afghanistan before I was born. My mother was to come to America alone, leave me in Kandahar. She couldn't do it. She told him to move on, find another wife, she was staying with her daughter. He gave in - he'd married my mother for her sweet disposition and her good looks, I don't know if he was counting on her determination - and I came to the promised land. An 18 month old girl with her 21 year old mom. Mom didn't speak a lick of English, learned it all at the Chock Full of Nuts on the Bowery (she says) and watching Sesame Street with me.

My mother is not typical of Afghan women. She is cool and fiesty and raised her kids to be soulful, thoughtful and spiritual. She sent me away to college and I was the first woman in my family to do that. I lived in a dorm! I stayed in my apartment for summers! I backpacked through Europe for months! I became an attorney who kept her last name and I defended people accused of terrible things. Through all of this, I heard my mother's voice "Zary, you can do it. Zary, don't ever say you can't. Zary, don't quit, try harder. Be better."

My mother told me that if I changed my last name, I would have to repay her every dime she paid for my education. ("If your husband is going to get the credit, then he should have to pay for it.")
Mirriam Seddiq is soulful, thoughtful, and spiritual, and an intelligent and respected attorney and blogger. I'm pleased to relate that my mother also told me to keep my last name, so at least I have that much in common with Mirriam.

When a woman sued Starbucks for injuries she suffered when scalded by a cup of hot tea, news outlets pounced on the story, drawing parallels between this case and the infamous McDonalds "hot coffee" lawsuit from a few years back. Whether there are anything more than superficial similarities between the two cases remains to be seen and Eric Turkewitz criticized those reporters and commentators who discussed the case without determining the facts:
Facts, facts, facts. That’s what makes and breaks lawsuits.

So I called plaintiff’s counsel, Elise Langsam. She’s been practicing 30+ years and has handled her share of scalding cases, often from showers where the landlord failed to set the water temperature controls properly. I wanted to know what actually happened with the Starbucks tea.

Here’s the deal. The plaintiff is Zeynap Inanli, a pro tennis player. Pro athletes aren’t generally the type of people that trip over their own two feet. And she didn’t.

The tea was bought at Starbucks near Grand Central Station on Lexington Third Avenue. The barista — coffee house devotees love that pretentious name for a counterperson – put the lid on, but didn’t put it on tight. As Inanli walked with the tea, that lid popped off and Inanli’s arm was scalded with the contents.

Inanli was admitted to the Weil Cornell Burn Unit for five days as a result.

Combine unsecured lid with the fact that the tea was so hot it caused second degree burns to the arm of the tennis player, and you have the elements of an action. So, two simple facts are at play: The failure to secure the lid and the scalding temperatures.

As Langsam told me, “You don’t put molten lava in a cup with a loose lid.”
As Turkewitz noted, with these facts, the case seems less like a major news event than a "run-of-the-mill negligence" matter. In a second post, he called-out the Reuters news service's shoddy reporting:
Reuters simply published a snippet from a modest legal filing, and then regurgitated the story of Stella Liebeck and McDonald’s coffee. As if all burn cases from chain restaurants are exactly the same. That’s journalism today?


You want to know what their excuse was for not finding out the actual facts? Here it is:
Starbucks, based in Seattle, did not immediately return requests for comment. The plaintiff’s lawyer did not immediately return a call for comment.
Clearly, this was a critical, time-sensitive story that had to be published immediately. They must have been sitting there terrified that they might get out-scooped, while an environmental disaster looms in the waters to our south, while we fight two wars, while the world waits to see if Greece will go belly-up and while our economy struggles.

Does Reuters actually give a damn about what they produce, even when their writers don’t? Or is it just enough that they produce media filler, and leave actual journalism to others?

When I saw the piece I couldn’t believe such miserably lazy reporting passed for news, but when I Googled it I was stunned at the number of major news organizations that decided to run with it.
If we can't rely on traditional journalists for reliable, complete reporting and analysis, thankfully we have bloggers like Turkewitz to do their jobs for them and correct the record. Mike Masnick is another on whom I've come to rely, particularly on legislative issues involving complex or developing technologies. He's thorough and evenhanded, not to mention refreshingly skeptical of the official statements of major governmental and business players. A good example of the quality of his writing is this week's post concerning the efforts of the head of the Department of Commerce's National Telecommunications and Information Agency to promote the federal government's role in internet regulation; Masnick discussed the official's latest comments and whether we can rely on the government to regulate the internet without damaging it:
All of that sounds good -- and I'm sure his heart (and his mind) are in the right place on this... but the details still scare me to death. As in his earlier speech, he lists out areas where he thinks the government has a role to play. And, if you're unfamiliar with the deeper details in any of those areas, it might be hard to disagree. But, as you dig deeper on each one, it gets more and more troubling.


The devil is very much in the details, and special interests have a really strong ability to influence the process and the details, so that any "balanced, internet-savvy" plan comes out as anything but that. For all of Strickling's best intentions, opening these things up to new laws really opens them up to abuse by folks who are world-class experts in abusing the system.


It's easy to look in hindsight and say "this is a good law" and "this is a bad law," but it's incredibly difficult in advance. If there were actually a system and process for reviewing laws to see if they ever actually did what was promised, perhaps it would be worthwhile to experiment. But that's not how the government works. Instead, politicians pass laws and just pretend they must do what they claim -- and then unintended consequences are ignored until the problems become big enough that a new bad law takes the old bad law's place.

Yes, that's a cynical view, but it's hard to argue with it when you look at the way the federal government works. So, as idealistic as Strickling may be, his ideas on Internet Policy 3.0 are incredibly scary, because of those unintended consequences that he can't predict.
We ignore the consequences of increased official authority at our peril. For years, we've waged a "war on drugs" which designated more and more substances as contraband, with vastly-increased criminal penalties. A steady drumbeat of political arguments about the dangers drug sellers and users pose to communities and police have been used to justify these enhanced penalties, to justify broader and more-frequently-used exceptions to traditional Fourth Amendment doctrine, and to justify the use of quasi-military police equipment and tactics in even the most minor drug-related arrests. Radley Balko has been unafraid to point out the many failures of the war on drugs and the dangers posed by police militarization, but the scale of those dangers is often difficult to convey in words. As the adage says, "a picture is worth a thousand words"; a video he posted recently is worth many thousands.

It's a terrifying and chaotic scene. As Balko describes, "This is the blunt-end result of all the war imagery and militaristic rhetoric politicians have been spewing for the last 30 years—cops dressed like soldiers, barreling through the front door middle of the night, slaughtering the family pets, filling the house with bullets in the presence of children, then having the audacity to charge the parents with endangering their own kid. There are 100-150 of these raids every day in America, the vast, vast majority like this one, to serve a warrant for a consensual crime." The raid turned-up a misdemeanor amount of marijuana.

This video was widely-shared in the legal blogosphere, in posts from Scott Greenfield, Robert Guest, and Brian Tannebaum, amongst many others. Paul Kennedy wrote, "I'm fairly certain that if you read the offense report it won't leave quite the same image in your mind as this video will. This should be required viewing for every judge who sits and decides whether the police acted reasonably or not in a given situation." Jeff Gamso noted that everything — every horrifying thing — was done by the book:
The cops acted properly. They got their warrant. They went after the miscreants. Did their job. Smashed down the door, shot the family dog, terrorized the family and the kids, busted the parents for misdemeanor pot possession - and for endangering the welfare of the kids.

Saving the future, one dead dog at a time.

The kids, no doubt, are grateful for the fine work the cops did protecting their sensibilities.
Norm Pattis drew a line in the sand, damning the consequences:
This is the most powerful argument I have ever seen in favor of the Second Amendment. And it is one of the few times I have viewed a videotape of a police procedure and realized that I could shoot back without remorse. So if you are thinking about bursting into my home with or without a warrant, be forewarned: Shoot to kill my dogs, and I will shoot to kill you. Period.
Rick Horowitz, who notes that he's been reluctant to own a gun, echoed Pattis' sentiments and posted a literal, not figurative, call to arms:
[T]he right of the people to keep and bear Arms is routinely infringed. By “law.” In California, for example, the people are currently allowed to bear Arms, but since the Second Amendment forgot to expressly mention the ammunition that goes with it, the guns must be unloaded. A lot of good being able to bear unloaded Arms does.

Of course, when the Revolution starts, California can go fuck itself.


The police in the video followed the “accepted procedure” of our courts, announcing themselves (under cover of darkness) giving the occupants a few seconds to rouse themselves before busting down the door, rushing in and shooting the family dog. Apparently, the dog must have refused to comply with their orders even after being shot, because after a brief pause several more shots are fired into the dog, silencing its screeches of pain.

Fortunately, they appear to have missed the children.

The officers are dressed in exactly the type of outfit that would have roused George Washington, Thomas Jefferson, James Madison, Elbridge Gerry and the thousands of other Founders of our nation to go to war against their government. And anyone who doesn’t think these men would go to war against the government under circumstances like we face today simply doesn’t know much about the history of this country.

This is one reason the government wants to ensure that you do not exercise your right to bear arms.


Don’t believe me? You don’t think the Founders thought we might need to protect ourselves from our own government? They frequently made comments about the fact that one thing that made America different, and unlikely to fall to a tyrannical government, was the fact that Americans own guns.


But, again, views like these are the reason why our government wants to take away our right to own weapons, or, in the alternative, wishes to limit the types of weapons we can own. The Founders, by the way, talked about that, too. They knew that tyrannical governments first work to disarm their citizens. Today, that starts by making sure the weapons available to us are not nearly as powerful as the ones the government uses to shoot our dogs.

This move needs to be resisted politically. We can vote out any politicians who try to limit our right to own weapons powerful enough to protect us against them.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., American Heritage (Prison Photograph of Ernesto Miranda), The New York Times, and Paris Odds n Ends Thrift Store.

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