Category: General Law


Sidebar Publishes Response to “Rethinking Free Speech and Civil Liability”

Sidebar LogoColumbia Law Review’s Sidebar is pleased to announce the publication of a response to  Professors Solove and Richards’ article, Rethinking Free Speech and Civil Liability, by Professor Timothy Zick of William and Mary Law School.

In their article, Professors Solove and Richards propose a new theory for when civil liability for speech will trigger First Amendment protections that focuses on the nature of the government power involved.  In his response, Professor Zick critically examines the choice and meaning of power, and the boundaries that a power-defining approach would draw.


The Roberts Court (Thus Far) and the Rule of Lenity

In their Legislation casebook, William Eskridge, Philip Frickey, and Elizabeth Garrett observe that between 1984 and 2006, the Supreme Court cited the rule of lenity in just over one-fourth of its cases interpreting criminal statutes and agreed with the government’s interpretation in over 60% of those cases. I thought it would be interesting to see how those figures compare to the still-nascent Roberts Court’s cases interpreting criminal statutes. 

Here is what I found:

Between February 2006 (when Justice Alito joined the Court) and the end of June 2009 (Justice Souter’s last day on the Court), the Roberts Court decided twenty-five cases that involved at least some interpretation of a criminal statute. In fourteen of those twenty-five cases (56%), the Court interpreted the statute in a manner that favored the defendant. In only six of the cases did the Court reference the Rule of Lenity—four times in dissent, one time in both the plurality opinion and the concurring opinion providing the fifth vote, and one time in a concurring opinion alone.

The two justices most likely to reference the rule of lenity (i.e., who exhibited the highest rates of reference to the rule over the relevant time period) were Justices Scalia and Stevens, each of whom referenced or joined an opinion referencing the rule in four1 of the twenty-five cases. Justice Ginsburg exhibited the next-highest rate of reference to the rule, invoking it or joining an opinion that invoked it in three2 of the cases; Justice Souter invoked or joined an opinion invoking the rule in two3 of the cases, while Justices Breyer, Roberts, and Thomas did so only once.4 Justices Alito and Kennedy did not reference or join an opinion referencing the rule of lenity in a single case during this time period.

Upshot:  Eskridge’s, Frickey’s, and Garrett’s finding that the rule of lenity plays a role in just over one-fourth of the Court’s criminal statutory cases seems to be holding steady in the Roberts Court. The Court may be shifting ever-so-slightly to a more equal rate of interpretations that favor the government versus the defendant, though it is too early and the sample size is too small to tell. Perhaps most interestingly, the rule of lenity seems to be losing steam as an interpretive aid: In the past several Supreme Court terms, it almost always has been cited by justices in dissent—even in the fourteen cases in which the Roberts Court interpreted the statute to favor the defendant, it rarely (one time) relied on the rule of lenity to reach its result. In light of this trend, it may be worth asking whether this longstanding rule of statutory construction is nearing its deathbed?


1.  See James v. United States (Scalia and Stevens, dissenting); United States v. Santos (Scalia plurality opinion, Stevens concurring opinion); Begay v. United States (Scalia concurring opinion); United States v. Rodriquez (Stevens joining Souter dissenting opinion); United States v. Hayes (Scalia joining Roberts dissent); Dean v. United States (Stevens dissent).

2.  See James (joined dissent), Santos (joined plurality), Rodriquez (joined dissent).

3.  See Santos (joined plurality), Rodriquez (authored dissent).

4.  Justice Breyer authored a dissenting opinion citing the rule in Dean v. United States; Justice Roberts authored a dissenting opinion invoking the rule in Rodriquez; and Justice Thomas joined the relevant portionf of the plurality opinion in Santos.


Re-igniting the Movement for Integration

Most of us recognize that our society will be stronger if our students are educated in diverse settings and our neighborhoods not divided by race or ethnicity.  Yet integration in education and housing remains an elusive goal and is often seen as secondary to measurable academic achievement or affordable housing.   

The politics of integration are also complex.  When is integration in a neighborhood cause for celebration and when has it shaded into the dreaded gentrification?  Are poor children of color most likely to be effectively educated in opportunity rich, integrated schools or will the teachers and administrations in such schools favor kids from wealthy families with helicopter parents?  These questions are real and should be topics for debate among policy makers, researchers, community residents, and parents.   

Unfortunately, this complexity and, to an even greater extent, anxiety about even acknowledging race have led many to shy away from these issues.  Not everyone, though.  Over 300 people attended a conference this past week at Howard University School of Law, entitled Reaffirming the Role of School Integration in K-12 Public Education Policy: A Conversation Among Policymakers, Advocates and Educators. The conference brought together Obama administration officials, civil rights advocates and researchers, educators, and parents.  If you are interested in the discussion, you can access the live blog here.


Just Talkin’

1238631_sad_dogFor those still lingering over your morning coffee, here are two quotes worth distracting you from the Sunday funnies:

Michael Arrington (TechCrunch Founder): “I’m worried about privacy–the companies out there gathering data on us, the stuff we do on Twitter, the publicly scrapeable stuff on Facebook.  It’s amazing how much data there is out there on us.  I’m worried that it can be abused and will be abused.”

Phil Malone (Harvard Law School, Director of Berkman Center for Internet and Society’s Cyberlaw Clinic explaining that viruses can deposit illegal pornography on unwitting individuals’ computers causing the innocent to be branded sexual deviants): “Sometimes the dog does eat your homework.”

Thanks to Time and the Washington Times.


Google Books limited to “common legal heritage”

On November 13, 2009, the parties in the Google Book litigation filed an Amended Settlement Agreement and a motion for preliminary approval of the amended settlement with the District Court. The amended agreement is available here. Elinor Mills at CNET has a good summary of the revised agreement.

The most significant change appears to be the narrowing of the scope of out-of-print works. The revised settlement is limited to U.S. works registered with the Copyright Office and non-U.S. works registered with the U.S. Copyright Office, or published in Canada, the United Kingdom or Australia. According to Google’s FAQ, “After hearing feedback from foreign rightsholders, the plaintiffs decided to narrow the class to include countries with a common legal heritage and similar book industry practices.” To sweeten the deal for Australia, Canada and the UK, their publishers and authors will have their own representation on the board of the rights registry which oversees the settlement.

The Financial Times reports that 95 per cent of all foreign works will no longer be included in Google’s digital book archive. Google will have to find a way of working with international rightsholder organizations to broaden the reach of their database.

As predicted, the revised agreement now includes greater protections for rights holders who cannot be traced before a book is scanned and made available online. Money derived from orphan works will be held for 10 years and unclaimed funds will now be distributed to charities in Australia, Canada, the UK and the US. Under the previous version of the Settlement, the Registry actually benefited from failing to locate the relevant copyright owners.

The agreement does not do anything to extend the orphan works license to Google’s competitors, that will still require legislative intervention. However the most favored nation clause which diminished the Registry’s incentives to deal with third parties if and when that legislation is forthcoming has been deleted from the agreement.

There are other significant changes worth mentioning, but they will have to wait for another day.


“On the phone with this fat chick… where my IHOP.”

My criminal defense attorney friends not-infrequently lament that their clients foolishly post incriminating information to facebook, twitter, myspace, etc.  But, it turns out that social networking sites can help criminal defendants too.  From New York comes news of a robbery suspect who had the charges against him dropped because of a facebook status update that gave him a rock-solid alibi.  At the time of the crime, the now-cleared Rodney Bradford was on his computer and posted the message that is the title of this post to facebook: “On the phone with this fat chick… where my IHOP.”

Update: Though I posted this as a quick, semi-humorous, item, SueSimp raises a good and substantive point in the comments that this case presents an example of the difficulties of eye-witness ID.  The suspect in this case was originally picked out of a lineup and, if not for his facebook status update, he may very well have ended up in prison on the basis of what we now know was a mistaken ID.


Blogging the Drug Policy Alliance Conference 2: 10 Rules for Dealing with Police

Last night, I attended a “sneak-preview” conference screening of “10 Rules for Dealing with Police,” a new video by Flex Your Rights.  Any profs out there who advise Street Law or similar programs should be sure to order this DVD once it is released (currently scheduled for late this year or early next).  10 Rules features super-star criminal defense lawyer Billy Murphy (who you may remember from his cameos on HBO’s The Wire) and provides practical and accessible guidance for dealing with the police.  The video weaves vignettes of fictionalized police encounters in with advice from Murphy about what to learn from each encounter.  Aside from including the “rules” every criminal defense attorney wishes their clients would follow about how to protect their constitutional rights (such not consenting to searches), the video also provides rules on how to be courteous to the police, etc.   I think 10 Rules will be an incredibly valuable tool for educating high school students and other lay audiences as part of “know your rights” or similar events and programs.

By the way, for those interested, DrugWarRant is providing some more detailed coverage of the Drug Policy Alliance conference.


Blogging the Drug Policy Alliance Conference

I’m currently in Albuquerque, New Mexico for the Drug Policy Alliance’s biannual conference.  The event brings together a mixture of people–from folks in the non-profit world to academics to activists–who are interested in drug policy reform issues.  This afternoon I spoke on a panel about state medical marijuana laws that included individuals involved in implementing medical marijuana laws in New Mexico, Colorado, and Rhode Island.  I offered my thoughts on the law in California, with a focus on my experience as Chair of the City of San Diego’s medical marijuana task force. It was a great discussion and especially fascinating to hear about the various approaches that states and cities are taking to the issue–for anyone with an interest in federalism, medical marijuana laws would certainly make an excellent case study.  (Speaking of which, Robert A. Mikos of Vanderbilt has a wonderful new article out considering the limits of federal supremacy in the context of California’s medical marijuana laws.)  I’m currently being dragged away from my laptop by some hungry colleagues for dinner, so I must keep this post brief.  But, I plan to blog more about California’s medical marijuana laws and my experiences in San Diego over the coming days.


California Law Review, Volume 97 Number 5 (October 2009)

California Law Review, Volume 97 Number 5 (October 2009)


Headwinds to a Clean Energy Future: Nuisance Suits Against Wind Energy Projects in the United States
Stephen Harland Butler

Capital Crime: How California’s Administration of the Death Penalty Violates the Eighth Amendment
Sara Colón

Full Faith and Credit for Status Records: A Reconsideration of Gardiner
Shawn Gebhardt

Accountability for Private Military Contractors Under the Alien Tort Statute
Jenny S. Lam


Assessing California’s Hybrid Democracy
Richard L. Hasen


Cornell Law Review, Volume 95 Number 1 (November 2009)


Cornell Law Review, Volume 95 Number 1 (November 2009)


The Structural Case for Vertical Maximalism
Tara Leigh Grove

Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?
Victoria Nourse & Gregory Shaffer


Evolutionary Theory and the Origin of Property Rights
James E. Krier


Negative Equity and Purchase-Money Security Interests Under the Uniform Commercial Code and the BAPCPA
Geoffrey M. Collins

An Uncertain Precedent: United States v. Santos and the Possibility of a Legislative Remedy
Evan Ennis