Author: Gerard Magliocca


Has the Fourth Amendment Jumped the Shark?

One advantage of blogging is that I get to pose questions that have always bugged me. In light of the Supreme Court’s activity this week, in which they handed down Arizona v. Gant (a case on warrantless car searches), and heard argument in Safford United School District v. Redding (a case about the strip-search of a teenage student), here’s my question — why does the Court take so many Fourth Amendment cases?

Now I am not a Fourth Amendment scholar, so perhaps this just reflects a certain envy that the Justices don’t take the cases that I’m interested in more often. But it’s always struck me that most of the Fourth Amendment cases where certiorari is granted are pretty fact-intensive. Ordinarily, you wouldn’t think they would be good candidates for Supreme Court attention, even in the presence of a circuit split.

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The Forgotten Man

A book that is getting a lot of attention these days is “The Forgotten Man: A New History of the Great Depression” by Amity Shlaes. Shlaes argues that FDR’s policies prolonged the economic downtown (or at least did not help). Now that we are in another severe recession, her book is being invoked by those who oppose to President Obama’s interventionist measures (such as economic stimulus) as evidence that the New Deal was a failure.

Let’s assume for purposes of discussion that Shlaes is right about the economics. Is that the end of the matter? I don’t think so. The next question is whether activist government was necessary to prevent something worse from happening. I’m not talking about a dictatorship. I’m simply referring to a political movement in favor of even more interventionist or redistributive policies that would have gained traction because the government was not doing enough.

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Pirate Democracy

I just finished a fun book that I want to recommend. It’s “The Invisible Hook: The Hidden Economics of Pirates” by Peter T. Leeson. The author explores the Golden Age of Piracy (circa 1720) and shows how pirates overcame collective action problems. While there are many parts that are of interest to lawyers (for example, the pirate use of trademarks — the Jolly Roger — and crude advertising to enhance their brand of terror and encourage capitulation), the issue that I want to focus on is pirate governance.

Leeson points out that pirates needed to create a legitimate authority amongst themselves because the cost of having unhappy crew members was high. Even one disgruntled pirate could desert and expose the ship to the authorities. (And the penalty for piracy was death). So how did pirate gangs handle this?

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Impeachment Proceedings

Here’s a prediction. The fallout from the release of the OLC Memos will be an impeachment inquiry into Judge Jay Bybee of the United States Court of Appeals for the Ninth Circuit, who signed the 2002 memo authorizing waterboarding and other enhanced interrogation techniques. I am not advocating Judge Bybee’s impeachment. I am merely saying that this where the political train is heading.

Put bluntly, there is no appetite in Washington to prosecute those involved in alleged torture. Every word and gesture from the President indicates that he’d like the problem to go away and leave him alone. Moreover, there is understandable unease about setting a precedent whereby officials from one Administration throw members of the prior one (of a different party) in jail over an issue that is partly based on policy disagreements. On the other hand, a decision not to prosecute those who formulated the interrogation regime leaves them unaccountable for their actions. What is the solution?

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The OLC Memos

I take up this topic with some hesitation because, to be honest, I would rather talk about something less depressing. Furthermore, I am not sure that I have anything to add to what has already been said about our treatment of high-level detainees (take a look at Sonja’s post below, for example). Nevertheless, I feel compelled to say something following the release of these memos. Putting aside the policy aspects of what was under consideration (if that is possible), three things stand out to me.

First, the analysis leans heavily on the experience of our own military trainees with the techniques in question, which strikes me as a false analogy. The argument in many of the memos goes something like this: (1) torture requires the infliction of severe pain or suffering; (2) when our trainees were subjected to these techniques they did not suffer severe pain or suffering; therefore (3) using this techniques on detainees is not torture. The problem is that point #3 does not follow from #2. As the first Bradbury memo concedes, our troops know that they are just undergoing training and will not be harmed when the techniques are applied to them. The detainees have no such assurance. This is a pretty important distinction, but even after this concession the memos continued to use our training experience to evaluate the severity of the interrogation techniques.

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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.


Analogous or Not?

Suppose that a family enters an area of land when they have no legal right to do so. They stay and live there for years using the property for lawful purposes (apart from their continuing trespass). At some point, the actual owner or authority returns and tries to kick them out.

Am I describing a case of adverse possession (where the squatter may well get title) or a case of illegal immigration (where deportation is the result)? This comparison raises some interesting questions, though the idea is not original to me. See Timothy J. Lukas & Minh T Hoang, “Open and Notorious: Adverse Possession and Immigration Reform,” 27 Wash. U. J. L. Pol’y 123 (2008); Monica Gomez, “Immigration by Adverse Possession: Common Law Amnesty For Long-Residing Illegal Immigrants in the United States,” 22 Geo. Immigr. L. J. 105 (2007).

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Incorporation and the Second Amendment

In the next year or two, the Supreme Court will probably address the question of whether the Second Amendment applies to the States. To shed some light on this issue, I examined why the incorporation of the Bill of Rights was rejected (with the exception of the Takings Clause) around 1900. The result is an article that will be coming out in Minnesota called Why Did the Incorporation of the Bill of Rights Fail in the Late Nineteenth Century? Let me briefly summarize its contents.

First, the Slaughterhouse opinion is not the culprit. Others have pointed out that that this decision did not reject incorporation in its holding and was ambiguous on the issue in its dicta. What’s new about my research is that I looked at every case that cited Slaughterhouse from 1873 to 1900 and found that only one (a state opinion from Utah) read the decision as hostile to incorporation. No federal decision advanced that interpretation until the Court itself took that step in 1900.

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Separation of Press and State

Times are tough in the newspaper industry. Its business model is under pressure from the Internet, as more and more people get their news and look for classifieds online. Throw in the sharp downtown in the economy, and the result is that several major papers have folded or filed for Chapter 11.

Senator Ben Cardin wants to stop the bleeding through proposed legislation that would allow papers to become 501(c)(3) tax-exempt organizations. This would give them a competitive advantage against other sources of advertising, and, in effect, be a subsidy. In exchange, newspapers could no longer endorse candidates on the editorial page or through their news coverage.

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Minnesota Senate Race

Like a documentary by Ken Burns, the Minnesota Senate race goes on and on. Al Franken’s lead increased after the contest trial as more disputed ballots were counted. Norm Coleman will now appeal to the State Supreme Court. In the event that this fails to change the outcome, some Coleman supporters are urging him to file a federal suit invoking Bush v. Gore as authority for the proposition that the use of different standards within each Minnesota county to count ballots is unconstitutional.

Of course, the Senate could end this saga today. Article One, Section Five of the Constitution makes the Senate “the Judge of the Elections, Returns, and Qualifications of its own Members.” If it seats Franken, that judgment is final. It is likely that he will be seated once Coleman exhausts his state remedies (unless the GOP filibusters that motion). In that case, any federal suit by Coleman should be dismissed as raising a political question. There is no precedent for a court ordering Congress to remove a seated member, and no such precedent should be created now.