Category: Supreme Court

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Justice Scalia’s Dossier: Joel Reidenberg Responds

Reidenberg-Joel.jpgProfessor Joel Reidenberg has asked me to post the following response to the story regarding his Justice Scalia dossier class assignment:

There seems to be significant misinformation circulating in the blogosphere relating to the nature of my class exercise, its instructional use, and how the exercise became public.

The exercise was part of my Information Privacy Law class this semester. The course, in exploring the origins and scope of privacy law, examined the ways technology can both invade and protect personal information and examined how the law related to those technologies. We used a traditional case book, Solove & Schwartz, and I supplemented the book with two concurrent exercises that are treated as course materials: 1) each week the students posted links on the course discussion board to news stories related to privacy issues so that we could discuss them in class and make connections to the casebook reading assignments; and, 2) throughout the semester, the students posted on a class discussion board links to information found on the web related to the class research exercise.

The research exercise is designed for class discussion to illustrate law and policy issues associated with readily available information, contextual use, social norms and the scope of legal protection. The exercise seeks to provide a first-hand experience for discussions of the boundary between public and private information, the loss of practical obscurity and the capacity of law to respond to these issues. For the exercise last year, I framed the research as a challenge to the class to find a specific piece of esoteric information about me. The class was surprised at how much information could be found readily. This year, I planned for the course to focus more attention on the blurring of public and private information and decided to frame the research exercise as a challenge to find information about a public figure. Very early in the semester, a news report about Justice Scalia’s speech was posted on the class discussion board as one of the weekly news items. He was reported to have made the comment that treating much of the information on the web as private was “silly.”

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Justice Scalia’s Dossier: Interesting Issues about Privacy and Ethics

justice-scalia.jpgEarlier this year, I blogged about Justice Scalia’s remarks about privacy at the Institute of American and Talmudic Law. According to media accounts:

“Every single datum about my life is private? That’s silly,” Scalia [said]. . . .

Scalia said he was largely untroubled by such Internet tracking. “I don’t find that particularly offensive,” he said. “I don’t find it a secret what I buy, unless it’s shameful.”

He added there’s some information that’s private, “but it doesn’t include what groceries I buy.” . . . .

Considering every fact about someone’s life private is “extraordinary,” he said, noting that data such as addresses have long been discernible, even if technology has made them easier to find.

At a recent conference at Fordham University sponsored in part by the Center on Law and Information Policy, Professor Joel Reidenberg discussed an assignment he gave to his class this past semester — find any public information about Justice Scalia and compile it into a dossier. As Kashmir Hill reports at Above the Law:

“Justice Scalia said he doesn’t care what people find out about him on the Internet,” said Reidenberg during his presentation on the transparency of personal information. “So I challenged my class to compile a dossier on him.”

Now four months later, at the end of the semester, the dossier (available online somewhere, but password protected) is 15 pages long. Among its contents are Nino’s home address, his home phone number, the movies he likes, his food preferences, his wife’s personal e-mail address, and “photos of his lovely grandchildren.”

“When the discrete bits of personal information were assembled at the end of the semester, the extent of the overall dossier and some of the particular items of readily available information on the web concerning his family and family life were astonishing to the class,” Reidenberg wrote to us.

Before the news of the dossier was reported by Above the Law, Reidenberg had sent a letter informing Justice Scalia about the dossier and offering to allow him to see it if he desired. The dossier was not made public.

Justice Scalia recently responded to the Above the Law post about Joel Reidenberg’s experiment:

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2

A Supreme Court Vacancy

Above the Law is reporting that Justice Souter has not hired clerks for the upcoming Term. While he is typically the last Justice to hire clerks, this is late even for him. This fact, combined with what I’m hearing from other people who probably know what they are talking about, convinces me that unless something extraordinary occurs in the next two months, he is retiring in June.

This means that breathless speculation about a successor can begin. (It’s never too early for that, right?) I’d be especially interested in what people think about Judge Kim Wardlaw (of the Ninth Circuit). While I hear her name mentioned as a possibility, I must confess that I know nothing about her.

1

2009 Judiciary Act: Part Four

This is my fourth post on the law professors’ proposal for a Judiciary Act of 2009. My first post is here. My second post is here. My third post is here.

The professors’ fourth proposal is to alter the certiorari process. The professors write that allowing the Justices to select their own cases makes the Court look like a “robed legislature.” By controlling their docket, the Justices are able to delegate the more basic tasks of adjudication of routine cases to lower courts and focus their efforts on writing new law. This, the professors contend, has contributed to growing unrest of citizens with judicial independence. “The independence of the judiciary is indispensable to the rule of law,” the professors explain, “but it is increasingly difficult to justify absolute independence for Justices whose chief work is expressing and imposing on the public laws on topics of their choice.” Moreover, state supreme courts and lower federal courts have taken a cue from the Supreme Court and likewise delegate routine tasks so that they can write extended opinions on important issues.

The professors propose the creation of a Certiorari Division of the Supreme Court staffed, by rotation, by experienced appellate judges. The Certiorari Division would review petitions for certiorari and select 80-100 cases each year for the Justices. The Justices could reverse some grants of certiorari and also grant certiorari in additional cases but the Court would be required to decide a substantial number of the cases identified by the Certiorari Division.

I am in favor of altering the current process by which the Supreme Court’s docket is set. Law clerks’ reviewing arguments by parties as to why and why not review should be granted is less than an ideal way to set the Court’s tasks. I am also generally sympathetic to the professors’ reliance on experienced appellate judges. Those judges could bring a sophisticated understanding of the law and a (more) reliable sense of when the Supreme Court’s intervention is warranted.

Given that the creation of the Certiorari Division is likely to encounter resistance, I have a different proposal that is easier to implement and addresses many of the professors’ own concerns.

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Which is the More Plausible Apocalypse?

According to James Dobson’s Focus on the Family, things are gonna be pretty bleak if Obama wins. As one blogger summarizes, FoF worries/predicts that by 2012, under Obama:

A single-payer national health care system has banned hospital admissions for anyone over 80.

The FCC nullifies all restrictions on obscene speech or visual portrayals on TV, and it’s now a 24-hour non-stop diet of explicit porn.

Churches are declared “public accommodations” and forced to offer marriage ceremonies for homosexual couples.

It’s a wonder Dobson didn’t just subcontract out this work to Tim LaHaye of Left Behind fame–but then again, even LaHaye’s been going “off message.” Of course, Dobson’s letter looks downright public-spirited compared to other tactics of the right, such as faked attacks and depictions of Obama as an avatar of Islamofascism.

Jeffrey Rosen raises the possibility of a different electoral apocalypse that may be a tad bit more plausible than Dobson’s eschatology:

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8

A Talk About Heller at ‘Bama

Alabama_counties_Yellowhammer.jpgThis Thursday I’ll be in recently rain-swept Tuscaloosa, giving a talk at the University of Alabama School of Law on “The Future of the Right to Arms After D.C. v. Heller.” at the kind invitation of ‘Bama’s chapter of the Federalist Society. I hope to discuss Heller‘s revision of U.S. v. Miller, the role of nineteenth-century state court decisions in Heller, and future Second Amendment battlegrounds such as incorporation, concealed carry, and the possible renewal of the expired federal “assault weapons” ban. Time permitting, I’ll also discuss what Heller illustrates about the distinctive character of American conservatism.

The talk will be held at 12:00 p.m. Thursday, August 28, in the Moot Courtroom in the UA Law School building. It would be a treat to encounter some CoOp readers there.

Travel bleg:

I’ve never been to Alabama. Any suggestions for things to do/see during a brief visit to Tuscaloosa or Birmingham (where I’m staying)? I do plan to visit the Birmingham Civil Rights Institute.

2

Hamdan, Human Rights, and John Edwards

Last week Salim Ahmed Hamdan was sentenced to 66 months in prison pursuant to his conviction for providing “material support for terrorism” before a military tribunal. His material support was comprised of driving Osama bin Laden around and serving as one of his body guards. Hamdan’s relatively short sentence, which will include time already served in detention at Guantanamo, will advance the issue of whether detainees who have served their punishment after conviction in the Administration’s military tribunals will be released, or will continue to be held as enemy combatants. Hamdan will likely complete his five and a half year sentence before a new administration is inaugurated. If President Bush does not release him immediately on completion of his sentence, that will leave the next administration with one more complicated problem to resolve. The NY Times reports that a Pentagon spokesperson “would not speculate’ on whether Hamdan would be released after completing his sentence.

Would it not violate Due Process to hold Hamdan indefinitely after completing his sentence for a criminal conviction? Under the reasoning provided by the Supreme Court in Hamdi, perhaps not.

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8

What’s the worst still-current Supreme Court decision?

When John McCain made the extremely ill-advised comment that Boumediene v. Bush was “one of the worst decisions in the history of this country,” bloggers showed up in force to illustrate the statement’s ridiculousness. Writers at a number of blog (and other) sites began to list other decisions that are clearly worse than Boumediene, no matter one’s political views. (I personally don’t think Boumediene is a bad decision; but even if it were, it wouldn’t pass these.) The lowest-hanging fruit here are Dred Scott v Sanford, Plessy v. Ferguson, and Korematsu v. United States. There are several other easy fish in this barrel, like Buck v. Bell and Chae Chan Ping. This isn’t difficult. Also, these decisions have since been repudiated or abandoned by the court.

(Sort of. Korematsu has never been formally overruled. However, the decision’s results have been sufficiently undermined — through Fred Korematsu’s coram nobis action; legislative apology and reparations; Fred Korematsu’s Presidential Medal of Freedom; and overwhelming criticism from all quarters — that it is essentially a dead letter today.)

(Chae Chan Ping has also never been overruled in some regards, but the most obviously invidious portions of it — upholding the Chinese Exclusion Act — have been rendered obsolete by the legislature. Today, Chae Chan Ping does not stand for the same things it stood for in 1889. But, see below.)

Paul Gowder recently asked an interesting follow-up question: “What’s the most destructive Supreme Court case that’s still good law?”

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5

“Machine Guns” That Aren’t: Did the D.C. Code Mislead Justice Breyer?

Magritte.jpgAn emergent theme of October Term 2007 seems to be avoidable mistakes in high-profile Supreme Court opinions. We’ve been surprised by the failure of Court and litigants in Kennedy v. Louisiana to notice the federal military death penalty for child rape, and by Justices Stevens and Scalia’s mischaracterization, in D.C. v. Heller, of the Court’s 1939 Second Amendment precedent, U.S. v. Miller, as “upholding a conviction” for violating a federal firearms law. See 2008 WL 2520816, *26 (opinion of the Court), * 34 (Stevens, J., dissenting). Actually, Miller won in the lower court and was never convicted.

I think I’ve found another mistake, this time in Justice Breyer’s Heller dissent. This one is subtler than the Kennedy error, but it significantly damages the persuasiveness of the Breyer dissent.

Justice Breyer joined Justice Stevens’s dissenting opinion in Heller, which concluded flatly that the Second Amendment “protects only a right to possess and use firearms in connection with service in a state-organized militia,” 2008 WL 2520816, *37 (Stevens, J., dissenting). However, Breyer also authored a separate dissenting opinion that mounts an alternative argument for the constitutionality of the D.C. handgun ban.

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