Author: Danielle Citron

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Calling All SCOTUS Clerks: Illuminating New Book on the Fourth Amendment and Its Original Meaning as a Guide for Carpenter

On June 5, 2017, the Supreme Court announced that it will review United States v. Carpenter, a case involving long-term, retrospective tracking of a person’s movements using information generated by his cell phone. As EFF’s Andrew Crocker and Jennifer Lynch write, “This is very exciting news in the world of digital privacy. With Carpenter, the Court has an opportunity to continue its recent pattern of applying Fourth Amendment protections to sensitive digital data. It may also limit or even reevaluate the so-called ‘Third Party Doctrine,’ which the government relies on to justify warrantless tracking and surveillance in a variety of contexts.”

SCOTUS clerks will surely be reading much Fourth Amendment literature and caselaw in preparation for their work on the Carpenter case. I’d like to nominate David Gray’s brilliant addition to the canon The Fourth Amendment in an Age of Surveillance (Cambridge University Press 2017).

From the book jacket:

The Fourth Amendment is facing a crisis. New and emerging surveillance technologies allow government agents to track us wherever we go, to monitor our activities online and offline, and to gather massive amounts of information relating to our financial transactions, communications, and social contacts. In addition, traditional police methods like stop-and-frisk have grown out of control, subjecting hundreds of thousands of innocent citizens to routine searches and seizures. In this work, David Gray uncovers the original meaning of the Fourth Amendment to reveal how its historical guarantees of collective security against threats of ‘unreasonable searches and seizures’ can provide concrete solutions to the current crisis. This important work should be read by anyone concerned with the ongoing viability of one of the most important constitutional rights in an age of increasing government surveillance.

Here is a video of Prof. Gray talking about the book: https://www.youtube.com/watch?v=pHUNRndaYIo

 

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Ideological Blindspots and More

Here are two recent posts from Max Stearns’s The Blindspot:

Ideological Blindspots (part 2): The Grandchildren

Max Stearns

Liberals and conservatives tend to take sharply divergent views of two major issues: global climate change and the looming national debt. But they share one attribute in common. Both sides believe that by focusing on the issue that most concerns them, they, unlike their opponents, are protecting the interests of their children, grandchildren, and great grandchildren. Caring about our progeny demands attending to both issues, and also to understanding how they interrelate.

Conservatives point out the looming national debt, which, as I write, is hovering at just shy of $20 trillion dollars. See http://www.usdebtclock.org. The federal deficit is hovering at $591 billion. To understand what this means, we need to clarify some terminology.   Read More

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The Blindspot: Must Read New Blog

My colleague Max Stearns kicked off his new blog, The Blindspot, whose timeliness is matched by its insights. Max explains:

I’m a different kind of law professor. Over the past twenty-five years, I have come to appreciate that we all have blindspots. We see the world with the benefits and burdens of our own framings. We often don’t realize how those framings, sometimes called “priors,” disallow us even to see what our opponents regard as central to their different understandings of the world. My academic background is a bit unusual, see here, and my interests are varied. One common thread in my academic work has been to shine a light on the blindspots themselves, pointing out what others miss.

I’m going to repost two recent pieces on The Blindspot so you can see for yourselves. (With Max’s permission).

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Calling all Scholars! Guaranteed Review at Hastings Law Journal

Some terrific news from the Executive Articles Editor at Hastings Law Journal:
We know that many of you have impending deadlines, and we are still actively reviewing manuscripts.  We can guarantee that we will review manuscripts for authors who commit to accepting an offer from Hastings Law Journal if we extend one by 5:00 PM PST on Monday, April 10.  If you would like to participate in this process, which does require that you keep your article available until April 10, please submit a Scholastica expedite request clearly indicating that you would like to participate no later than 5:00 PM PST on Friday, March 31.  This will ensure that we have enough time to put each article through our peer review process.  Thank you for your interest in Hastings Law Journal.
Sincerely,
Jacob Hirsch
Executive Articles Editor
Hastings Law Journal
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Hiring Committee Announcement

Professor Heather Elliott kindly passed on word related to Alabama University School of Law’s hiring goals for the year. Alabama seeks to fill entry-level/junior-lateral tenure-track positions for the 2017-2018 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship; junior-lateral candidates should have an established record of excellent teaching and distinguished scholarship. Although positions are not necessarily limited by subject, applications from those who study and teach commercial law (including contracts and sales) or torts (including products liability) are especially welcome; business law, family law, and insurance law are also areas of interest. The school welcomes applications from candidates who approach scholarship from a variety of perspectives and methods (including quantitative or qualitative empiricism, formal mode ling, or historical or philosophical analysis). The University of Alabama embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community. Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law, and interested applicants should apply at facultyjobs.ua.edu; the positions remain open until filled. Questions should be directed to Professor Heather Elliott, Chair of the Faculty Appointments Committee (facappts@law.ua.edu). The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under federal law from discrimination on several bases.

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AALS, Professor Dan Markel, and the Scholarly Tradition

This week is the annual law professor conference in New York City. The AALS conference is always a wonderful ritual of learning, discussion, and friendship. Indeed, it was the one time of the year that guaranteed a lunch, dinner, or chat with brilliant criminal law theorist and incredible friend Dan Markel. When Dan was murdered in the summer of 2014, I wrote this post for Forbes about his life’s lessons. For colleagues who are going to AALS this year, CoOp will be having a Markelfest in his honor tomorrow night. I wish that I could be there to celebrate Dan and his passion for scholarship and the world of ideas. We miss you, Dan.

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AALS and Markelfest happy hour

For those of you attending AALS in New York this week, Prawfsblawg is hosting a MarkelFest! Happy Hour from 8:30 p.m.-?? on Thursday (Jan. 7) at Bridges in the Hilton (entrance on the 54th Street side). This will be on the public side of the bar. Please come join us to meet our readers, remember Dan, and carry on the social tradition that he enjoyed so much.

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Privatization: The American Society for Political and Legal Philosophy Meeting

For readers attending AALS (or who live in the New York area), good news: the annual conference of the American Society for Political and Legal Philosophy, on “Privatization,” is being held in conjunction with the annual meeting of AALS on January 6, 2016, in New York. It will take place in the Riverside Ballroom, Sheraton New York Times Square Hotel. Here is the program. The conference features prominent scholars in law, political science, and philosophy. Registration is not required.

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Lawyers and Clients: The Absurd Reality for Indigent Clients Facing Execution

A Thought Experiment

Suppose that Facebook got sued for a privacy tort for hosting nonconsensual pornography and that Facebook’s lawyer told company executives that she did not intend to mount Facebook’s preferred response—a motion to dismiss on the grounds of Section 230 immunity. Executives explained to the lawyer that Section 230 of the federal Communications Decency Act is a knock out punch. An Internet intermediary can’t be held responsible for privacy-invading content created by a user. The lawyer, however, refused to listen to reason.

When Facebook tried to switch attorneys, its first lawyer told the court that Facebook should be forced to remain represented by that lawyer even though Facebook wanted a new one. In making that argument to the court, Facebook’s first lawyer told the court that she was doing a good job for Facebook and that her refusal to mount Facebook’s preferred defense was because Facebook had no Section 230 immunity. Facebook’s lawyer would not only be undermining her own client’s case, but would also be incorrectly representing the underlying issue to the court.

Facebook’s lawyer would be in flagrant violation of fiduciary duties to its client. Of course, clients with money can fire lawyers. Those lawyers certainly should not be permitted to undermine a client’s case in the course of trying to retain the representation—especially by inaccurately representing key features of a case. That sounds so obviously right: a contrary suggestion would surely be absurd.

Absurd Reality for Indigent Clients Facing Execution

For a reason that is hard to fathom, this is precisely what is allowed to happen in criminal cases affecting indigent clients facing execution. Apparently – at least in the Fifth Circuit – the relationship between client principals and lawyer agents is different.

This week, in Roberson v. Stephens, the Supreme Court will consider whether the execution of Robert L. Roberson should proceed even though his lawyers seem to have prioritized their own reputational interests at the expense of their client. Over at Balkanization, my colleague Mark Graber has a careful explanation of how Mr. Roberson’s lawyers seem more preoccupied with their reputations than with resuscitating a Sixth Amendment claim that might save his life.

At issue in Roberson is a failure of legal agency involving the same death penalty lawyers that a palpably displeased Justice Sotomayor rebuked on the eve of their client Raphael Holiday’s November 18 execution. The lawyers refused to file a clemency petition and opposed Mr. Holiday’s attempts to find a lawyer who would follow his wishes and file it. Forced to go along with the Court’s refusal to stay the execution because the attorneys filed a last-minute clemency petition, Justice Sotomayor nevertheless issued a powerful statement criticizing the lawyers for their behavior and the lower courts for failing to police it. She explained that the law does not permit “condemned men and women to be abandoned by their counsel at the last moment . . . [y]et this is exactly what happened here.”

Here again, the same lawyers have seemingly refused to listen to their client, Mr. Roberson, because doing so might require one of them to expose himself to a finding that the forfeiture of the Sixth Amendment claim was his own fault.

As briefing submitted in support of Supreme Court review explains: “In both Roberson and Holiday, the Fifth Circuit permitted the same pattern of conduct: CJA counsel’s refusal to pursue relief on the client’s behalf, followed by counsel’s inaccurate representations to courts about the constraints on seeking such relief, concluding with legal opposition to the very client they were appointed to represent. At base, both Roberson and Holiday express the Fifth Circuit’s view that [the statutory right to counsel] affords courts discretion to saddle inmates facing execution with lawyers who are not functioning as agents of their clients.”

The assessment of the ethics experts in the case is unequivocal. Yale Professor Lawrence Fox is the former Chair of the ABA Standing Committee on Ethics and Professional Responsibility, and the former Chair of the ABA Litigation Section. Professor Fox concluded “to a reasonable degree of a professional certainty that both lawyers are operating under profound conflicts of interest that prevent them from continuing the representation[.]” Charles Herring, a renown Texas ethics expert, explained: “James Volberding and Seth Kretzer have conflicts of interest that should prevent them from representing Mr. Roberson on the [Sixth Amendment issue in the case].”

I may not be a death penalty lawyer, but I know enough to understand that we should not be allowing attorneys to obstruct relief preferred by their own clients—particularly in cases where the attorneys seem to be engaged in obstruction as a means of protecting their own interests. If we would not allow counsel for Facebook to cling onto her job contrary to the interest of its client, we certainly should not do so in a case where the stakes are not just about money but about life and death.