Showing papers on "Supreme court published in 2013"

White-Collar Government: The Hidden Role of Class in Economic Policy Making

Abstract: Eight of the last twelve presidents were millionaires when they took office. The figure is above fifty percent among current Supreme Court justices, all nine of whom graduated from either Harvard or Yale. Millionaires also control Congress, where a background in business or law is the norm and the average member of the House or Senate has spent less than two percent of his or her adult life in a working-class job. Why is it that most politicians in America are so much better off than the people who elect them - and does the social class divide between citizens and their representatives matter? With White-Collar Government, Nicholas Carnes answers this question with a resounding - and disturbing - yes. Legislators' socioeconomic backgrounds, he shows, have a profound impact not only on how they view the issues but also on the choices they make in office. Scant representation from among the working class almost guarantees that the policymaking process will be skewed toward outcomes that favor the upper class. It matters that the wealthiest Americans set the tax rates for the wealthy, that white-collar professionals choose the minimum wage for blue-collar workers, and that people who have always had health insurance decide whether to help those without. And while there is no one cause for this crisis of representation, Carnes shows that the problem does not stem from a lack of qualified candidates from among the working class. The solution, he argues, must involve a variety of changes, from the equalization of campaign funding to a shift in the types of candidates the parties support. If we want a government for the people, we have to start working toward a government that is truly by the people. White-Collar Government challenges long-held notions about the causes of political inequality in the United States and speaks to enduring questions about representation and political accountability.

Bankruptcy Step Zero

Abstract: In RadLAX Gateway Hotel, LLC v Amalgamated Bank, the Supreme Court’s statutory interpretation focuses on an emerging theme of its bankruptcy jurisprudence: the proper domain of the bankruptcy judge While one might expect the Court to approach that question of domain as it has for administrative agencies, that is not the approach taken This article explores the Court’s approach to bankruptcy’s domain In doing so, we connect three principal strands of the Court’s bankruptcy jurisprudence The first strand, embodied in Butner v United States, centers on the idea that the bankruptcy forum must vindicate nonbankruptcy rights The second, most recently addressed in Stern v Marshall, focuses on the limits of bankruptcy judges in deciding and issuing final judgment on the issues before them Bankruptcy judges must limit themselves to deciding issues central to the administration of the bankruptcy process RadLAX is the continuation of a third strand that makes it plain that the Court reads ambiguous provisions of the Bankruptcy Code to narrow the range of decisions over which the bankruptcy judge may exercise her discretion — at least when the exercise of that discretion might impact nonbankruptcy rights The resulting bankruptcy jurisprudence is in stark contrast with the Court’s approach in administrative law This paper attempts to make sense of this state of affairs and connect it with the realities of bankruptcy practice today

An Empirical Study of the Effect of Shady Grove v. Allstate on Forum Shopping in the New York Courts

Abstract: Given the considerable prominence of forum-shopping concerns in the jurisprudence and academic literature on the so-called Erie Doctrine, courts and commentators may benefit from data on whether, and to what extent, forum shopping in fact responds to choice-of-law decisions under the Erie Doctrine. Prior to this paper, however, no empirical study quantified the changes in forum shopping behavior caused by a court decision applying the Erie Doctrine. I study changes in filing patterns of cases likely to be affected by the Supreme Court’s recent decision in Shady Grove v. Allstate and find evidence of large shifts in the patterns of original filings and removals in federal courts in New York that are consistent with the predicted forum shopping response to Shady Grove. In addition to providing the first empirical evidence of vertical forum shopping induced by a decision applying the Erie doctrine, this paper seeks to serve as a proof of concept for empirical research in this area. While there are significant obstacles to empirical research on the effects of Erie and its progeny, this paper outlines a methodology that may be feasible for future projects in this area.

On the Ideological Foundations of Supreme Court Legitimacy in the American Public

Abstract: Conventional wisdom says that individuals’ ideological preferences do not influence Supreme Court legitimacy orientations. Most work is based on the assumption that the contemporary Court is objectively conservative in its policymaking, meaning that ideological disagreement should come from liberals and agreement from conservatives. Our nuanced look at the Court's policymaking suggests rational bases for perceiving the Court's contemporary policymaking as conservative, moderate, and even liberal. We argue that subjective ideological disagreement—incongruence between one's ideological preferences and one's perception of the Court's ideological tenor—must be accounted for when explaining legitimacy. Analysis of a national survey shows that subjective ideological disagreement exhibits a potent, deleterious impact on legitimacy. Ideology exhibits sensible connections to legitimacy depending on how people perceive the Court's ideological tenor. Results from a survey experiment support our posited mechanism. Our work has implications for the public's view of the Court as a “political” institution.

The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice

Abstract: Judges play a central role in the American legal system, but their behavior as decision makers is not well understood, even among themselves. The system permits judges to be quite secretive (and most of them are), so indirect methods are required to make sense of their behavior. Here, a political scientist, an economist, and a judge work together to construct a unified theory of judicial decision-making. Using statistical methods to test hypotheses, they dispel the mystery of how judicial decisions in district courts, circuit courts, and the Supreme Court are made. The authors derive their hypotheses from a labor-market model, which allows them to consider judges as they would any other economic actors: as self-interested individuals motivated by both the pecuniary and non-pecuniary aspects of their work. In their view, this model describes judicial behavior better than either the traditional "legalist" theory, which sees judges as automatons who mechanically apply the law to the facts, or the current dominant theory in political science, which exaggerates the ideological component in judicial behavior. Ideology does figure into decision-making at all levels of the federal judiciary, the authors find, but its influence is not uniform. It diminishes as one moves down the judicial hierarchy from the Supreme Court to the courts of appeals to the district courts. As The Behavior of Federal Judges demonstrates, the good news is that ideology does not extinguish the influence of other components in judicial decision-making. Federal judges are not just robots or politicians in robes.

Violent video games and the Supreme Court: Lessons for the scientific community in the wake of Brown v. Entertainment Merchants Association.

Abstract: In June 2011 the U.S. Supreme Court ruled that video games enjoy full free speech protections and that the regulation of violent game sales to minors is unconstitutional. The Supreme Court also referred to psychological research on violent video games as "unpersuasive" and noted that such research contains many methodological flaws. Recent reviews in many scholarly journals have come to similar conclusions, although much debate continues. Given past statements by the American Psychological Association linking video game and media violence with aggression, the Supreme Court ruling, particularly its critique of the science, is likely to be shocking and disappointing to some psychologists. One possible outcome is that the psychological community may increase the conclusiveness of their statements linking violent games to harm as a form of defensive reaction. However, in this article the author argues that the psychological community would be better served by reflecting on this research and considering whether the scientific process failed by permitting and even encouraging statements about video game violence that exceeded the data or ignored conflicting data. Although it is likely that debates on this issue will continue, a move toward caution and conservatism as well as increased dialogue between scholars on opposing sides of this debate will be necessary to restore scientific credibility. The current article reviews the involvement of the psychological science community in the Brown v. Entertainment Merchants Association case and suggests that it might learn from some of the errors in this case for the future. (PsycINFO Database Record (c) 2013 APA, all rights reserved). Language: en

Memory and law: what can cognitive neuroscience contribute?

Abstract: A recent New Jersey Supreme Court decision has led to new jury instructions explaining that memory does not operate like a video recording. The authors discuss cognitive neuroscience research on memory and how it might contribute in the courtroom.

The influence of neuroscience on US Supreme Court decisions about adolescents' criminal culpability

Abstract: In the past 8 years, the US Supreme Court has issued landmark opinions in three cases that involved the criminal culpability of juveniles. In the most recent case, in 2012, a ruling prohibited states from mandating life without parole for crimes committed by minors. In these cases, the Court drew on scientific studies of the adolescent brain in concluding that adolescents, by virtue of their inherent psychological and neurobiological immaturity, are not as responsible for their behaviour as adults. This article discusses the Court's rationale in these cases and the role of scientific evidence about adolescent brain development in its decisions. I conclude that the neuroscientific evidence was probably persuasive to the Court not because it revealed something new about the nature of adolescence but precisely because it aligned with common sense and behavioural science.

Why states expand Medicaid: party, resources, and history.

Abstract: After the passage of the Patient Protection and Affordable Care Act in March 2010 and the affirmation of its constitutionality by the Supreme Court in 2012, key decisions about the implementation of health care reform are now in the hands of states. But our understanding of these decisions is hampered by simplistic sortings of state directions into two or three simple, rigid categories. This article takes a different approach--it tracks the variations in relative state progress in implementing Medicaid expansion across a continuum of activities and steps in the decision-making process. This new measure reveals wide variation not only among states that have adopted Medicaid expansion but also among those that have rejected it but have also made progress. We use this new measure to spotlight cross-pressured Republican states that have adopted Medicaid expansion or have prepared to move forward and to explore possible explanations for implementation that extend beyond a simple focus on party control.

Does recent research on adolescent brain development inform the mature minor doctrine

Abstract: US Supreme Court rulings concerning sanctions for juvenile offenders have drawn on the science of brain development and concluded that adolescents are inherently less mature than adults in ways that render them less culpable. This conclusion departs from arguments made in cases involving the mature minor doctrine, in which teenagers have been portrayed as comparable to adults in their capacity to make medical decisions. I attempt to reconcile these apparently incompatible views of adolescents' decision-making competence. Adolescents are indeed less mature than adults when making decisions under conditions that are characterized by emotional arousal and peer pressure, but adolescents aged 15 and older are just as mature as adults when emotional arousal is minimized and when they are not under the influence of peers, conditions that typically characterize medical decision-making. The mature minor doctrine, as applied to individuals 15 and older, is thus consistent with recent research on adolescent development.

Is the u.s. supreme court's legitimacy grounded in performance satisfaction and ideology?*

Abstract: Bartels and Johnston have recently presented evidence suggesting that the legitimacy of the Supreme Court is grounded in the ideological preferences and perceptions of the American people. In addition, they offer experimental data purporting to show that dissatisfaction with a single Court decision substantially diminishes the institution’s legitimacy. These findings strongly break with earlier research on the Court’s institutional support, as the authors recognize. The theoretical implications of their findings are profound. If the authors are correct that legitimacy is strongly dependent upon satisfying the policy preferences and ideological predilections of the American people, the essence of legitimacy is fundamentally altered. Consequently, we re-investigate the relationships among ideology, performance satisfaction, and Court legitimacy, unearthing empirical findings that diverge markedly from theirs. We conclude with some thoughts about how the Court’s “countermajoritarian dilemma” can be reconceptualized and recalculated, once more drawing conclusions sharply at odds with those of Bartels and Johnston.

The Role of Residential Segregation in Contemporary School Segregation

Abstract: Inaction to address housing segregation in metropolitan areas has resulted in persistently high levels of residential segregation. As the Supreme Court has recently limited school districts’ volunt...

Report on Health Reform Implementation Why States Expand Medicaid: Party, Resources, and History

Abstract: After the passage of the Patient Protection and Affordable Care Act in March 2010 and the affirmation of its constitutionality by the Supreme Court in 2012, key decisions about the implementation of health care reform are now in the hands of states. But our understanding of these decisions is hampered by simplistic sortings of state directions into two or three simple, rigid categories. This article takes a different approach—it tracks thevariations in relative state progress in implementing Medicaid expansion across a continuum of activities and steps in the decision-making process. This new measure reveals wide variation not only among states that have adopted Medicaid expansion but also among those that have rejected it but have also made progress. We use this new measure to spotlight cross-pressured Republican states that have adopted Medicaid expansion or have prepared to move forward and to explore possible explanations for implementation that extend beyond a simple focus on party control.

Tiers of Scrutiny in Enumerated Powers Jurisprudence

Abstract: This Article identifies and analyzes the recent emergence of a “tiers of scrutiny” system in Supreme Court jurisprudence respecting the boundaries of Congress’s enumerated powers. The inquiry is motivated by the Court’s recent ruling on the federal healthcare law, which demonstrated that the national legislature’s election among its diverse textual sources of authority in Article I can have large, outcome-determinative consequences in constitutional challenges to federal laws. This is so because the Court not only delineates each power’s substantive boundaries differently but also applies distinct standards of review to the various legislative powers enumerated in Article I and elsewhere in the Constitution. Variation in the standard of review generates both synchronic and diachronic oscillation in the quantum of empirical justification and means-end rationality demanded of Congress. This observed heterogeneity in the judicial demand for legislative rationality and empirical evidence is quite distinct from questions of how broadly or narrowly the substance of each enumerated power is defined. This Article’s threshold contribution is a comprehensive documentation of variation in doctrinal formulae concerning the standard of review in enumerated powers cases. Having demonstrated the existence of tiers of scrutiny for enumerated powers, it then evaluates their use in enumerated powers jurisprudence. Drawing on political science scholarship, social choice theory, and public choice theory, it demonstrates that the Court’s use of tiers of scrutiny has deleterious effects on judicial and legislative incentives and behavior. This Article then identifies six potential justifications for the Court’s emergent practice of calibrating judicial review differentially by enumerated power. Closely examining each of those six justifications for stratified review, it finds all of them wanting. At the same time as it creates negative externalities, therefore, the practice of tiered review for enumerated powers lacks any compelling normative justification. By abandoning the emerging tiers of scrutiny and instead employing a lockstep approach to the review of enumerated powers, this Article suggests, federal courts would reduce opportunities for strategic behavior by judges and elected officials. The proposed doctrinal reformulation would also introduce clarity into a currently opaque, yet abidingly important, domain of public law.

The Collapse of the Harm Principle Redux: On Same-Sex Marriage, the Supreme Court’s Opinion in United States v. Windsor, John Stuart Mill’s essay On Liberty (1859), and H.L.A. Hart’s Modern Harm Principle

Abstract: In an article published in 1999, titled The Collapse of the Harm Principle, I argued that the harm principle, originally articulated in John Stuart Mill’s essay On Liberty (1859), had collapsed under the weight of its own success and no longer serves, today, as a limiting principle on the legal enforcement of morality. Several readers raised forceful questions about the relationship between Mill’s original essay and the harm principle, as well as about the continuing vitality of Mill’s argument. In this article, I return to my original argument to draw an important distinction and clarify a central point. The argument in The Collapse of the Harm Principle can be slightly restated and, I believe, continues to shed light on contemporary debates over the legal regulation of morality: Today, the hegemony of the modern harm principle, developed by liberal legal thinkers at mid-twentieth century, continues to generate a proliferation of harm arguments, and the competing claims of non-trivial harms have effectively neutralized the limiting function of the harm principle. I then demonstrate the continued vitality of the argument by exploring the recent Supreme Court decision on same-sex marriage, United States v. Windsor, which, I argue, reflects perfectly the collapse of the harm principle.

Quality Over Quantity: Amici Influence and Judicial Decision Making

Abstract: Interest groups often make their preferences known on cases before the U.S. Supreme Court via amicus curiae briefs. In evaluating the case and related arguments, we posit that judges take into account more than just the number of supporters for the liberal and conservative positions. Specifically, judges’ decisions may also reflect the relative power of the groups. We use network position to measure interest group power in U.S. Supreme Court cases from 1946 to 2001. We find that the effect of interest group power is minimal in times of heavily advantaged cases. However, when the two sides of a case are approximately equal in the number of briefs, such power is a valuable signal to judges. We also show that justice ideology moderates the effect of liberal interest group power. The results corroborate previous findings on the influence of amicus curiae briefs and add a nuanced understanding of the conditions under which the quality and reputation of interest groups matter, not just the quantity.

Standing for the Structural Constitution

Abstract: Who speaks in federal court for the structural principles of the federal Constitution? Under familiar practice — endorsed by the Supreme Court in its 2011 decision Bond v. United States — it is not solely the institutions empowered directly by federalism or the separation of powers but also individual litigants who can raise structural constitutional objections. Such individual standing for the structural constitution is unusual because, in effect, it enables a species of third-party standing elsewhere condemned by the Court. This Article analyzes individual standing for the structural constitution from both doctrinal and political economy perspectives. Such individual standing, I contend, conflicts with Article III’s larger ambition to exclude from federal court those controversies with excessive externalities. Consideration of structural litigation’s political economy further shows that enlarging the pool of litigants by allowing individual as well as institutions to sue is unlikely to yield closer conformity to the Constitution given interest group dynamics. As an alternative to the current regime, the Article specifies a straitened regime of narrow justiciability that is more harmonious with Article III goals and more likely to secure fidelity to the structural constitution.

Perma: Scoping and Addressing the Problem of Link and Reference Rot in Legal Citations

Abstract: We document a serious problem of reference rot: more than 70% of the URLs within the Harvard Law Review and other journals, and 50% of the URLs found within United States Supreme Court opinions, do not link to the originally cited information.Given that, we propose a solution for authors and editors of new scholarship that involves libraries undertaking the distributed, long-term preservation of link contents.

Consequential courts : judicial roles in global perspective

Abstract: Part I Expanding Judicial Roles in New or Restored Democracies: 1 The politics of courts in democratization: four junctures in Asia Tom Ginsburg 2 Fragmentation? Defection? Legitimacy? Explaining judicial roles in post-communist 'colored revolutions' Alexei Trochev 3 Constitutional authority and judicial pragmatism: politics and law in the evolution of South Africa's constitutional court Heinz Klug 4 Distributing political power: the constitutional tribunal in post-authoritarian Chile Druscilla L Scribner 5 The transformation of the Mexican Supreme Court into an arena for political contestation Monica Castillejos-Aragon Part II Expanding Judicial Roles in Established Democracies: 6 Courts enforcing political accountability: the role of criminal justice in Italy Carlo Guarnieri 7 The Dutch Hoge Raad: judicial roles played, lost, and not played Nick Huls 8 A consequential court: the US Supreme Court in the twentieth century Robert A Kagan 9 Judicial constitution-making in a divided society - the Israeli case Amnon Reichman 10 Public interest litigation and the transformation of the Supreme Court of India Manoj Mate 11 The judicial dynamics of the French and European fundamental rights revolution Mitchel de S-O-l'E Lasser 12 Constitutional courts as bulwarks of secularism Ran Hirschl Part III Four 'Provocations': 13 Why the legal complex is integral to theories of consequential courts Terence C Halliday 14 Judicial power: getting it and keeping it John Ferejohn 15 Out of phase: politics, regimes, and regime politics Mark A Graber 16 The mighty problem continues Martin Shapiro 17 Conclusion: of judicial ships and winds of change Diana Kapiszewski, Gordon Silverstein and Robert A Kagan

Removal as a Political Question

Abstract: When should courts be responsible for designing federal administrative agencies? In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court invalidated one specific mechanism that Congress employs to insulate agencies from presidential control. Lower federal courts have discerned wider implications in the decision’s linkage of presidential power to remove agency officials with democratic accountability. Applied robustly, the Free Enterprise Fund principle casts doubt on many agencies’ organic statutes. As the judiciary starts exploring those implications, this Article evaluates the effects of judicial intervention in administrative agency design in light of recent political science work on bureaucratic behavior, historical studies of state development, and comparative analyses of other countries’ civil services. Judicial intervention in agency design, I conclude, will not generate consistent and predictable outcomes and instead risks diluting majoritarian control and fostering policy uncertainty. In light of the tenuous correlation between changes in presidential removal power and the underlying constitutional good of democratic accountability, I argue, removal power questions should be ranked as “political questions” beyond federal court competence.

The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content

Abstract: Scholars have dedicated substantial research efforts to investigating whether interest group amicus curiae briefs influence the behavior of Supreme Court justices. Despite this, there has been little systematic attention devoted to exploring what is arguably the most important aspect of the Court’s policy outputs – its majority opinions. We remedy this state of affairs by using plagiarism detection software to assess the ability of amicus briefs to shape the content of judicial opinions. Our findings indicate that the justices incorporate language from amicus briefs into their opinions based primarily on the extent to which amicus briefs contribute to their ability to make effective law and policy. These results add fresh insight into how interest groups influence the development of federal law by the Supreme Court.

The Political Power of Protest: Minority Activism and Shifts in Public Policy

Abstract: Gillion demonstrates the direct influence that political protest behavior has on Congress, the presidency and the Supreme Court, illustrating that protest is a form of democratic responsiveness that government officials have used, and continue to draw on, to implement federal policies. Focusing on racial and ethnic minority concerns, this book shows that the context of political protest has served as a signal for political preferences. As pro-minority rights behavior grew and anti-minority rights actions declined, politicians learned from minority protest and responded when they felt emboldened by stronger informational cues stemming from citizens' behavior, a theory referred to as the 'information continuum'. Although the shift from protest to politics as a political strategy has opened the door for institutionalized political opportunity, racial and ethnic minorities have neglected a powerful tool to illustrate the inequalities that exist in contemporary society.

Lafler and Frye: Two Small Band-Aids for a Festering Wound

Abstract: This article contends that two recent Supreme Court decisions concerning the assistance of counsel in plea bargaining do not warrant the hype bestowed upon them by professors and the press. Lafler v. Cooper and Missouri v. Frye did not significantly change the law, and even if these decisions had been bolder, they could not have done much to make effective legal assistance more likely. Our plea-bargaining system both subjects defense attorneys to serious temptations to disregard their clients’ interests and makes it impossible to determine whether defendants have received effective assistance.Much of the article focuses on a partly empirical, partly jurisprudential issue that divided the majority and dissenting justices: Does plea bargaining reward defendants who plead guilty or instead penalize those who stand trial? The author of the principal dissenting opinion, Justice Scalia, maintained that plea bargaining enables defendants “to serve less time than the law says [they] deserve[].” Justice Kennedy responded for the majority that defendants “who take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes.”The article contends that the issue can be resolved and that the majority has it right. America did not achieve the world record for mass incarceration by giving 95% of all convicted offenders less punishment than they deserve. Indeed, no sane nation would be likely to sentence 95% of its convicts to less than they deserve or than effective deterrence requires. This nation would be far more likely to impose additional punishment on a small minority to save the cost of trials. It’s no coincidence that the nation most dependent on plea bargaining is also the nation that incarcerates the highest proportion of its population. By lowering the cost of imposing criminal punishment, plea bargaining has given America more of it.The Lafler-Frye majority disregarded the implications of its position when it declared plea agreements beneficial to both parties. If post-trial sentences are imposed simply for the purpose of inducing guilty pleas (as the Supreme Court recognizes five-to-four), plea bargaining benefits both parties only in the sense that a gunman’s demand for your money or your life benefits you as well as the gunman. Proposals commonly are treated as coercive when refusing them would leave recipients worse off than they ought to be.Along the way, the article considers what plea agreements should look like in a system that does what bargaining prosecutors and defense attorneys acknowledge (and boast) that they do, and it criticizes David Abrams’ empirical conclusion that plea bargains really aren’t bargains at all.

Definition of Intellectual Disability in Criminal Court Cases

Abstract: Definitions and associated descriptions of the condition now commonly known as intellectual disability serve many functions. The Atkins v. Virginia U.S. Supreme Court decision (2002) has called attention to the importance of clear, objective, and measureable wording of the definition. This article discusses the potential for misunderstanding and misinterpretation of such words as ability and cognitive, the importance of clarifying the role of measurement error and sociocultural factors, and the noncausal relationship between impairment in intelligence and adaptive behavior.

Removal as a Political Question

Abstract: When should courts be responsible for designing federal administrative agencies? In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court invalidated one specific mechanism that Congress employs to insulate agencies from presidential control. Lower federal courts have discerned wider implications in the decision’s linkage of presidential power to remove agency officials with democratic accountability. Applied robustly, the Free Enterprise Fund principle casts doubt on many agencies’ organic statutes. As the judiciary starts exploring those implications, this Article evaluates the effects of judicial intervention in administrative agency design in light of recent political science work on bureaucratic behavior, historical studies of state development, and comparative analyses of other countries’ civil services. Judicial intervention in agency design, I conclude, will not generate consistent and predictable outcomes and instead risks diluting majoritarian control and fostering policy uncertainty. In light of the tenuous correlation between changes in presidential removal power and the underlying constitutional good of democratic accountability, I argue, removal power questions should be ranked as “political questions” beyond federal court competence.

How the Supreme Court Alters Opinion Language to Evade Congressional Review

Abstract: We argue that actors can attempt to shield their policy choices from unfavorable review by crafting them in a manner that will increase the costs necessary for supervisory institutions to review them. We apply this theory to the US Supreme Court and demonstrate how justices strategically obfuscate the language of majority opinions in the attempt to circumvent unfavorable review from a politically hostile Congress. The results suggest that Supreme Court justices can and do alter the language of their opinions to raise the costs of legislative review and thereby protect their decisions.

Observations from Above: Unmanned Aircraft Systems and Privacy

Abstract: III GOVERNMENT UNMANNED AIRCRAFT AND THE FOURTH AMENDMENT The Fourth Amendment is central to the privacy issues with respect to government UAS operation Although the Supreme Court has never explicitly considered the question of UAS privacy, there is a long list of relevant precedents (90) Among them are several cases from the 1980s that specifically considered aerial observations and the Fourth Amendment The 2001 Kyllo v United States (91) and 2012 United States v Jones (92) decisions are also pertinent A Dow Chemical Co v United States In 1978, the Environmental Protection Agency, without Dow Chemical's consent, contracted with a commercial aerial photographer to provide images of a 2000-acre Dow Chemical manufacturing facility from altitudes of 1200, 3000, and 12,000 feet (93) When Dow Chemical became aware of this, it filed suit in Federal District Court, which granted summary judgment, finding the aerial photography to be a search in violation of the Fourth Amendment (94) The Sixth Circuit reversed the decision, ruling that even though the company had taken precautions, including installing a perimeter fence and alarm system (95) that provided a subjective expectation of privacy from ground-level intrusions, it did not have such an expectation with respect to aerial surveillance (96) Thus, the Sixth Circuit concluded, the acquisition of aerial images without a warrant was not a Fourth Amendment search (97) In reviewing this ruling on certiorari, the Supreme Court affirmed the Sixth Circuit's decision, concluding in a 1986 ruling that the open areas in the 2000-acre industrial facility were more akin to an "open field" (98) than to the curtilage of a home, and, as a result, were "open to the view and observation of persons in aircraft lawfully in the public airspace immediately above or sufficiently near the area for the reach of cameras" (99) The Court also noted the role of technology diffusion as a factor, writing that "surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant" (100) However, the Court observed, "[a]ny person with an airplane and an aerial camera could readily duplicate" (101) the photographs at issue "[T]he taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by the Fourth Amendment" (102) B California v Ciraolo Ciraolo (103) was decided in 1986, on the same day as Dow Chemical On September 2, 1982, police in Santa Clara, California, received a tip regarding backyard marijuana cultivation (104) After finding the yard surrounded by high fencing obscuring the view from the street, they obtained a small airplane and flew over the residence at 1000 feet (105) The officers on the airplane observed and photographed what they concluded to be marijuana plants growing in the backyard (106) This evidence was used to obtain a search warrant to seize the plants (107) The Supreme Court granted certiorari after the California Court of Appeal ruled that the warrantless aerial observations violated the Fourth Amendment (108) In May 1986, the Supreme Court issued a five-to-four decision reversing the lower court (109) Writing for the majority, Chief Justice Burger framed the analysis in terms of the "reasonable expectation of privacy" (110) articulated in Justice Harlan's concurrence in Katz (111) For an expectation of privacy to be "reasonable" under Katz, two separate criteria must be satisfied First, the person must "have exhibited an actual (subjective) expectation of privacy" (112) Second, the expectation must "be one that society is prepared to recognize as 'reasonable"' (113) With respect to the first criterion, the Ciraolo Court wrote that although the presence of fences clearly conveyed a "desire to maintain privacy," and indeed successfully did so with respect to "normal sidewalk traffic," the marijuana plants might well have been visible from a truck or two-level bus …

Immigration Detention as Punishment

Abstract: Courts and commentators have long assumed, without significant analysis, that immigration detention is a form of civil confinement merely because the immigration proceedings of which it is part are deemed civil. This Article challenges that deeply held assumption. It harnesses the Supreme Court’s instruction that detention’s civil or penal character turns on legislative intent and, buttressed by theoretical understandings of punishment, contends that immigration detention — apart from the deportation that often results — itself constitutes penal incarceration. In particular, legislation enacted over roughly fifteen years in the 1980s and 1990s indicates a palpable desire to wield immigration detention as a tool in fighting the nation’s burgeoning war on drugs by sanctioning and stigmatizing criminal behavior. Indeed, the immigration detention system that has developed has accomplished Congress’s punitive goal: immigration detention is experienced as severe and its occupants viewed as dangerous. Remaining true to the Court’s guidance to draw formalist boundaries between civil and penal confinement, immigration detention should be conceptualized as punishment. Rather than subjecting immigration detention to the constitutional limitations imposed by criminal procedure, this Article contends that, learning from the nation’s failed experience with mass penal incarceration, policymakers should step back from immigration detention’s punitive origins and create a truly civil immigration detention system.

Gene Patenting—The Supreme Court Finally Speaks

Abstract: In June 2013, the U.S. Supreme Court unanimously ruled that the patents on BRCA1 and BRCA2 held by Myriad were not valid because human genes are products of nature and therefore not patentable. The authors discuss the implications of this long-awaited decision.

Lafler and Frye: Two Small Band-Aids for a Festering Wound

Abstract: This article contends that two recent Supreme Court decisions concerning the assistance of counsel in plea bargaining do not warrant the hype bestowed upon them by professors and the press. Lafler v. Cooper and Missouri v. Frye did not significantly change the law, and even if these decisions had been bolder, they could not have done much to make effective legal assistance more likely. Our plea-bargaining system both subjects defense attorneys to serious temptations to disregard their clients’ interests and makes it impossible to determine whether defendants have received effective assistance.Much of the article focuses on a partly empirical, partly jurisprudential issue that divided the majority and dissenting justices: Does plea bargaining reward defendants who plead guilty or instead penalize those who stand trial? The author of the principal dissenting opinion, Justice Scalia, maintained that plea bargaining enables defendants “to serve less time than the law says [they] deserve[].” Justice Kennedy responded for the majority that defendants “who take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes.”The article contends that the issue can be resolved and that the majority has it right. America did not achieve the world record for mass incarceration by giving 95% of all convicted offenders less punishment than they deserve. Indeed, no sane nation would be likely to sentence 95% of its convicts to less than they deserve or than effective deterrence requires. This nation would be far more likely to impose additional punishment on a small minority to save the cost of trials. It’s no coincidence that the nation most dependent on plea bargaining is also the nation that incarcerates the highest proportion of its population. By lowering the cost of imposing criminal punishment, plea bargaining has given America more of it.The Lafler-Frye majority disregarded the implications of its position when it declared plea agreements beneficial to both parties. If post-trial sentences are imposed simply for the purpose of inducing guilty pleas (as the Supreme Court recognizes five-to-four), plea bargaining benefits both parties only in the sense that a gunman’s demand for your money or your life benefits you as well as the gunman. Proposals commonly are treated as coercive when refusing them would leave recipients worse off than they ought to be.Along the way, the article considers what plea agreements should look like in a system that does what bargaining prosecutors and defense attorneys acknowledge (and boast) that they do, and it criticizes David Abrams’ empirical conclusion that plea bargains really aren’t bargains at all.