Author: Jason Mazzone


Hill v. McDonough

Yesterday the Supreme Court decided Hill v. McDonough. In its unanimous opinion, authored by Justice Kennedy, the Court held that a death-row inmate could invoke section 1983 to seek an injunction against Florida’s method of three-drug lethal injection, which, the inmate contended, caused intense pain in violation of the Eighth Amendment.

The district court and the Eleventh Circuit had dismissed the inmate’s action on the ground that it was the functional equivalent of a habeas petition and, since the inmate had already sought habeas relief, the claim was barred as a successive petition.

In reinstating the inmate’s section 1983 suit, Justice Kennedy reasoned that the inmate’s claim was not a challenge to his actual sentence (the subject of a habeas petition) but only to the mode in which the state sought to carry it out.

Though the holding of the case is narrow, and the Court expressed no view on the merits of the Eighth Amendment claim, it’s rare to see a unanimous decision in a death penalty case.

More evidence perhaps that Justice Roberts’ magic dust is working.


Al Zarqawi and the Marriage Amendment

Within hours after the U.S. Senate refuses to write discrimination into the Constitution, the U.S. Air Force is led to and kills #1 Iraq terrorist Abu Musab al Zarqawi.

It can’t be a coincidence. Jerry Falwell must be right after all:

I really believe that the pagans, and the abortionists, and the feminists, and the gays and the lesbians who are actively trying to make that an alternative lifestyle, the ACLU, People For the American Way – all of them who have tried to secularize America – I point the finger in their face and say ‘you helped this happen.’

Well done.


Canada’s Balance

Do the recent arrests of suspected terrorists in Canada show that the country has struck the right balance between security and civil liberties?

A New York Times article suggests that requiring the police in Canada to obtain a warrant before conducting surveillance and covert searches was conducive to thwarting the terrorist plot. The article quotes Mike McDonell, assistant commissioner of the Royal Canadian Mounted Police: “I never sought greater authority to conduct monitoring and surveillance, and I don’t expect to be asking for any more now.” A scholar is also quoted as saying that Canada doesn’t need broader government surveillance of the N.S.A. variety.

(While the article reports that the Canadian Security Establishment is permitted to intercept foreign communications upon authorization by the Minister of Defense (but without the need for a judicial warrant), the article suggests that the CSE was not involved in the recent terrorist arrests.)

It’s easy to say you’ve struck the right balance when you work within the law and manage to stop a terrorist cell. I’m not sure, though, that that’s the best basis for assessing whether we’ve struck the right balance between security and liberty. If the terrorists in Canada had succeeded in blowing up buildings and people, would we conclude that the Canadian balance was wrong and needed to be readjusted?

The right balance between security and liberty might allow for some failures, i.e. some acts of terrorism that don’t get stopped, because stopping them would involve too great a limit on liberty. On the other hand, the right balance might be security measures and restrictions on civil liberty greater than necessary (as measured by the number of actual terrorist incidents) because we’d rather err on the side of caution.


The Class of 2006

Today is Brooklyn Law School’s Commencement. Congratulations to the members of the Class of 2006. These students started at Brooklyn the same year I began teaching.

Our commencement is always a lavish affair. We take over Tavern on the Green for brunch and then the commencement exercises are held at Lincoln Center. Many of our students are first generation lawyers; a good number are immigrants. Our commencement speaker this year is Richard Goldstone, formerly of the Constitutional Court of South Africa. A preview we got last night at dinner suggests his speech will be a highlight of the day.

In a few months, we’ll have a new crop of 1Ls. Nobody is quite the same after they are done with law school; there are things we all wished we knew before we began.

In that spirit, I ask our readers who are graduating this year or who have already graduated from law school: if you, older and wiser now, could send back in time some advice to yourself in the summer just before you began law school, what advice would that be?


Student # 43 Unmasked!!

Bush.jpgI posted earlier about an answer to my exam question on constitutional amendments written by student with ID number “43.” I said that I gave “43” a C.

Most readers, I think, got it. But based on reactions posted by dolts at lesser blogs and some strange e-mails I received, some didn’t. (Who knew there were so many literalists?)

So, for the benefit of everyone, I’m hereby posting “43’s” facebook photo.

No, I didn’t give my current Constitutional Law students the question I discussed (though I’m confident if I had they would have had no trouble coming up with more carefully thought out proposals than the Federal Marriage Amendment). And I certainly can’t imagine posting a real student’s exam answer on a blog and telling the world how I graded it. That would be outlandish behavior–even for a law professor.

I appreciate the many thoughtful comments I received about this (fictional) post.


Uses of Legislative History: Scalia v. Alito

Today the Supreme Court held unanimously in Zedner v. United States that a defendant may not prospectively waive the application of the Speedy Trial Act and, therefore, a defendant’s agreement to waive the Act’s protections “for all time” in his pending criminal case was ineffective. Justice Alito wrote the majority opinion in which he reasoned that the language and purposes of the Speedy Trial Act led to the conclusion that the Act did not permit prospective waivers and that this conclusion was supported by the Act’s legislative history. Justice Scalia wrote the single concurring opinion, joining the majority opinion except for it’s use of legislative history.

Sharply criticizing Alito’s reliance on legislative history, Scalia wrote:

I believe that the only language that constitutes “a Law” within the meaning of the Bicameralism and Presentment Clause of Article I, §7, and hence the only language adopted in a fashion that entitles it to our attention, is the text of the enacted statute. . . .

It may seem that there is no harm in using committee reports and other such sources when they are merely in accord with the plain meaning of the Act. But this sort of intellectual piling-on has addictive consequences. To begin with, it accustoms us to believing that what is said by a single person in a floor debate or by a committee report represents the view of Congress as a whole—so that we sometimes even will say (when referring to a floor statement and committee report) that “Congress has expressed” thus-and-so. . . . There is no basis either in law or in reality for this naive belief. Moreover, if legislative history is relevant when it confirms the plain meaning of the statutory text, it should also be relevant when it contradicts the plain meaning, thus rendering what is plain ambiguous. Because the use of legislative history is illegitimate and ill advised in the interpretation of any statute—and especially a statute that is clear on its face—I do not join this portion of the Court’s opinion.

Given that the decision is 9-0, it’s hard to read it as early evidence of a large difference between Scalia and Alito. For that, we’d need a case in which Alito uses legislative history to buttress a statutory interpreptation with which Scalia does not otherwise agree.


The Problem of the 28th Amendment

Here is a question from my exam in Constitutional Law:

The U.S. Constitution contains 27 amendments; the most recent (the 27th), was ratified in 1992. Write a proposed 28th Amendment and explain why your proposed amendment should be adopted. The proposal may deal with any issue you wish.

In addition to giving me something interesting to read when I’m grading, this question is very useful for seeing how well a student understands the Constitution. It’s not easy to draft an amendment that accomplishes what you want (no more, no less) and that fits into the existing Constitution as a whole.

In grading answers, I’m not much concerned with the particular change a student suggests making—my main focus is on how well the student executes the proposal.

If, for instance, a student proposes abolishing the Supreme Court, I expect to see some thinking about how appellate cases will henceforth be decided. If a student wants states to have a power to maintain armies, there should be some attention to resolving the likely federal-state conflicts that will arise. Form also matters: a 2,000 word amendment dealing with the minutiae of traffic regulation would be out of place in a document that creates the structures of government and secures our most important freedoms.

Exam-taker with ID number 43 thinks it’s a good idea to amend the Constitution to prohibit, as he puts it, “activist judges” and maverick local officials from allowing same-sex couples to get married. To accomplish those ends, 43 proposes the following amendment as the 28th Amendment to the U.S. Constitution:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.

How well did 43 do?

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Don’t Know Much About Driving

In the spirit of fair and balanced reporting, here now some positive news about our non-East Coast readers. According to a new study, the nation’s drivers with the least knowledge of the rules of the road are in the East: in Rhode Island to be exact–followed by Washington D.C., Massachusetts, New Jersey and New York. Next time you cross a street in Providence, Boston, Newark or Brooklyn, keep in mind that one in three drivers don’t think they have to stop or slow down for pedestrians and one in five have no idea roads are more slippery when wet. Oregon has the most knowledgable drivers, followed by Washington State. Vermont is third–the only Eastern state in the top twenty-five.

In fairness to East Coasters, knowing how to drive might not necessarily translate into skill behind the wheel. New York cabbies seem oblivious to rules but their passengers are rarely injured.


The Conservatives’ Gay Kids

With the Federal Marriage Amendment coming before the Senate this month, it’s a good time to ask: why do so many conservatives have gay offspring? To name just a few: Phyllis Schlafly (son, John), Dick & Lynne Cheney (Mary), Randall Terry (Jamiel), Sonny Bono (Chastity), Alan Keyes (Maya) and Pete Knight (David). Meanwhile, those liberal Kennedys of Massachusetts appear to have no gay children of record. Is there something about the Republican lifestyle that leads to homosexuality?