Category: Constitutional Law


Repressing Erie’s Myth

My colleague (and former Co-Op Guest-Blogger) Craig Green has posted Repressing Erie’s Myth, 95 Cal. L. Rev. ___ (2008) on SSRN. From the abstract:

This Article seeks to alter basic perceptions of Erie v. Tompkins. Everyone knows Erie’s requirement that federal courts apply state substantive law in diversity cases. But for some scholars and judges, Erie means much more. The case has been enlisted to serve such wideranging causes as positivism, federalism, and separation of powers. And in 2004, the Supreme Court used Erie to restrict the availability of human rights lawsuits in U.S. courts.

My goal is to limit exaggerations of Erie’s importance and forestall resultant threats to judicial power. This critique of Erie’s myth has three parts:

First, I attack the old myth (espoused by Brandeis, Friendly, John Hart Ely, and others) that Erie is based on constitutional federalism.

Second, I criticize the new myth claim (advanced by Curtis Bradley, Jack Goldsmith, and Sosa v. Alvarez-Machain) that Erie is based on separation of powers. In this analysis, I compare Sosa with Hamdan v. Rumsfeld, which denied the new myth’s broadest consequences.

Third, I offer a new model for federal common law, which analyses common-lawmaking consistently with other judicial work. My model parallels Jackson’s account of exeutive power in Youngstown Steel. Specifically, I suggest that federal common law should (i) be favored when authorized by Congress, (ii) be disfavored when proscribed by Congress, and (iii) occupy a zone of twilight when Congress has not addressed the issue.

Erie is a fine ruling in its original context, but it is implausible as a general theory of judicial power. Only by seeing Erie for what it is can one resist modern efforts to draw strong anti-judicial ideas from this iconic case’s shadows.

I’ve read this paper several times in draft, and think it is terrific. Check it out!

Related Links:

1. If You Were At Temple Law Today


The Chicken and the Eagle

NRAEagle.jpgDo free-marketeers need their own judicial pantheon? In a recent forum at the Council on Foreign Relations, Amity Shlaes, author of The Forgotten Man: A New History of the Great Depression, argued that conservatives and libertarians ought to induct Schechter Poultry Corp. v. United States into such a pantheon. She gave the example of Gideon’s Trumpet, Anthony Lewis’s account of the lone and unrepresented prisoner who fought his case to the Supreme Court in Gideon v. Wainwright and won the right to a lawyer. This story, she argued, has provided a central emotional text for many a liberal lawyer. Schechter ought to be the same thing for libertarians and conservatives.

I learned my con law in the hallowed halls of establishment liberalism where Frankfurter once walked and where Tribe taught us the traditional story of Schechter. This was the case where the final retrograde forces of Lochner-ism struck down the New Deal in the name of nineteenth-century notions of commerce and non-delegation. Tribe, being a very smart and thoughtful doctrinalist, gave us a more nuanced account of the case than one might expect from an institution whose identity is tied up in sacred myths of the New Deal braintrusters, but I don’t recall that we were invited to feel any sense of relief or triumph over the decline of the National Recovery Administration. (One could contrast this to Tribe’s eloquent and moving indictment of the system of segregation struck down in Brown.)

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Beware the Teenie Weenie: Social Norms and Expressive Culture

teenieweenie.jpgI’ve been doing a lot of reading and thinking about intellectual freedom lately, as part of a project on the overlap between intellectual privacy rules and First Amendment values. I’ve also come across some pretty weird stuff, like this story from the German media about a children’s book deal that fell through. A famous German children’s book author was trying to get a book deal to publish a translated version of her illustrated children’s book in the US. Unfortunately, the deal didn’t happen after an irreconcilable disagreement arose over a picture appearing in a museum scene in the book. As the article puts it rather cheekily:

What could possibly have got the suits at [the publisher] so hot under the overly starched collar? A painting depicting a gratuitous Roman orgy being viewed by wide-eyed 5-year olds? A massive bronze phallus gawped at by an awestruck group of pre-teens? Hardly. Apart from a tasteful nude reclining in a slightly blurred watercolor in the background, the main offending artifact was a tiny male statue and its microscopic penis.

Apparently, the offending image was less than half a millimeter in size, but the publisher insisted on its removal for fear of a backlash from offended parents.

We could dismiss this as a fairly silly story about the lunacy of the publishing industry, but I think there is a serious issue here. This is not an issue of censorship, because the government is not involved in making the book unavailable. But one of the problems with the way we tend to think about speech, is that we are fixated on the model of legislative rules that get remedied (or not) by judges. If we’re really interested in promoting an expressive culture, we need to look beyond this judicial anti-censorship model.

The teenie weenie case points up the critical role of social norms in helping to define the contours of our expressive culture. Theories of free speech focus a great deal on legal rules even though most people’s decision to speak or not speak on questions is principally mediated by the concern of how others (employers, friends, strangers, book publishers) will act towards us depending upon what we say. The norms of the book publisher in this case meant that this book was not made available for the US market.

What’s the harm with that? Well, the ability to think for ourselves requires access to a wide variety of materials. When books aren’t published because they are offensive, we are deprived of what they offer. This case involves just one book, but the aggregated effect of small decisions like this really determines the intellectual space that our minds inhabit. The social norms which this decision seems to reflect would (if strong enough) push certain notions of art out of children’s literature, and could have an effect on how children come to see the world, the nature of art, and the human body. Publishers of books are in business to make money, but they should also realize (as reporters and librarians frequently do) that they occupy a social institution that has real effects on our expressive culture. Our expressive culture depends on publishers fulfilling their professional role as guardians of free speech as well as profit-maximizers. Wimping out because of possibly imaginary fears of angry parents does us all a disservice, at least if we care more about an open-minded culture than protecting people (even little ones) from the teenie weenie.

Law & the Little Guy

Will the haves always come out ahead? Rebecca Tushnet’s recent post on a possible application of the Supreme Court’s excessive damages jurisprudence sparked some thoughts on some asymmetries in legal protections. First, from Tushnet’s post:

Seana Shiffrin argues that the Supreme Court’s punitive damages jurisprudence leads to the conclusion that [some credit card] late fees are unconstitutional if they’re too high, since they can only be imposed by legislative abrogations of the traditional rule against punitive damages in contract. So while others have decried the consumer protection implications of recent Supreme Court cases, she has turned the argument around against big business, much as some RIAA defendants have claimed that copyright’s statutory damages provisions are unconstitutional under the same precedents.

By the way, those statutory damages provisions could lead to a fine of up to $150,000 for one stolen song.

Two other potential angles here: will Apple’s touted ability to monitor your usage of songs on your iPod also lead it to help catch iPod thiefs? Consider this editorial, “Apple Knows Who Stole Your iPod:”

J. Alain Ferry’s website, . . . suggests that there is something Apple could do. “Apple maintains records of stolen iPod serial numbers,” the website reads. “Apple’s iTunes software records the serial number of the last connected iPod. Apple sells songs to people that enter their billing information into the iTunes software. So why isn’t Apple doing anything to prevent the sale of songs to the person with YOUR stolen iPod?”

Does Apple at least have a “non-spoliation” duty to keep information on the IP addresses of those iPods which are connected to the iTunes store after being reported stolen?

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Jeffersonian Privilege

The D.C. Circuit ruled this morning on Rep. William Jefferson’s motion to get back the material seized when the FBI searched his congressional office in the Rayburn House Office Building. As is so often the case, the early AP story on the decision sort of missed the boat. It was headlined “Court: FBI Violated Constitution in Raid.” But the actual holding is quite limited. Jefferson gets back originals and copies of all legislative materials, but not anything non-privileged. The court also deferred any decisions about usability of any of that non-privileged material at Jefferson’s upcoming bribery trial; the district court will make that determination in the first instance.

So, the impact for the future seems to be that the Executive can search congressional offices with a warrant, and can do so without tipping off a legislator in advance (potentially allowing destruction of evidence). The only difference is that the Member of Congress has to be there during the search and is permitted to assert his privilege under the Speech and Debate Clause “before the Executive scour[s] his records.” (Slip op. at 15.) I’ll be keen to hear what the real experts on separation of powers think of this opinion.

It is also interesting to contemplate how this apparently narrow practical scope of the legislative branch privilege contrasts with the assertion of executive privilege over the U.S. Attorney firings and related matters.

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Harry Potter and the Due Process Clause

Harry potter cover.jpgDon’t worry, no spoilers here.

I stayed up way past my bedtime last night finishing the final Harry Potter book. I found it very satisfying. But this is a law blog, and I am a geeky law professor, so the phenomenon I will note is how extensively these books develop the theme of procedural fairness — a marvelous lesson for the children who are its target audience.

Time and again throughout the series, the Ministry of Magic that rules wizards in England falls far short of what we would consider the minimum of due process. There are repeated sham hearings that have the trappings of even-handed court proceedings, but they are rigged and hollow. In an earlier book (Harry Potter and the Order of the Phoenix, also the movie currently playing in theaters), Harry himself is accused of an infraction against wizarding rules; the Minister abruptly changes the time for his hearing before the Wizengamot — a sort of legislature with judicial functions, it seems — hoping that Harry’s principal advocate, the wise Albus Dumbledore, will miss it. The same phenomenon happens constantly at Hogwarts, the wizarding school. Various teachers and headmasters make arbitrary and capricious decisions and issue unjust punishments.

Sometimes this sort of unfairness is perpetrated by the clear bad guys, the evil followers of the story’s villain, Voldemort. More often, however, leaders of the Ministry of Magic or of Hogwarts are simply acting bureaucratically. They may not support Voldemort at all, but they treasure form over substance and obedience to the letter of the rules rather than any adherence to its spirit. Most of all they seek to preserve their own power against perceived threats — often petty threats far less serious than the real dangers posed by Voldemort’s followers. The fact that there is an official hearing, an examination of witnesses, and a vote provides no guarantee of substantial fairness.

Early in the first semester of my civil procedure course I plan to have the students read the classic procedural due process cases (Goldberg and Mathews) and think about the attributes that do — and should — constitute fair procedure. I think I will use the Harry Potter books as an example.


Pomegranate Juice and the War on Terror

purely juice.jpgThe blogs are abuzz this morning talking about the Times’ profile of Stephen Abraham, an Army reserve officer who filed a crucial affidavit in the latest Guantanamo litigation. The article explains Abraham’s unique role:

As an intelligence officer responsible for running the central computer depository of evidence for the hearings, he said, he saw many of the documents in hundreds of the 558 cases. He also worked as a liaison with intelligence agencies and served on one three-member hearing panel.

All of which has left Colonel Abraham, 46, a civilian business lawyer who has lately been busy with a lawsuit between makers of pomegranate juice, with a central role in the public debate over Guantánamo. His account has been widely discussed in Congress, the administration and the press. On Friday, a federal appeals court judge took note of it in describing what she said were problems with the Pentagon’s hearing process.

I thought I’d do some digging into that aspect of this story that will interest our non-constitutional readers: why are pomegranate juice sellers suing each other?

PACER searches disposed of the mystery quickly. POM Wonderful LLC v. Purely Juice, Inc. et al., CV 07-2633 (C.D. Ca.) was filed on April 20, 2007. POM lawsuit against Purely Juice alleges that Purely Juice violated the federal Lanham Act (and its state analogue) by falsely marketing its product as “all natural, consist[ing] of 100% pomegranate juice” with “NO added sugar or sweeteners.”

Abraham represents Purely Juice. Just a few days ago, his client won an important victory in the case. On July 11, 2007, Judge Christina Snyder denied POM’s TRO. The order itself (download the PDF here) is notable for its length and careful attention to the law. POM had independently tested Purely Juice’s product, and allegedly found that “it is clear that consumers of ‘Purely Juice . . .’ are not receiving the nutrients and antioxidant polyphenol health benefits that one would expect from 100% authentic pomegranate juice.” [Editorial comment: anytime you are asking a judge to make a claim about “antioxidant polyphenol health benefits” on a TRO, you seem likely to be in for a tough fight.] But, Abraham argued that, basically, the FDA hasn’t yet made clear what constitutes 100% pomegranate juice, and it was otherwise compliant with 21 CFR 101.30, regulating percent juice claims. The Court agreed with Abraham. As for the plaintiff’s claim that the “NO added sugar” was misleading, the Court found that there was insufficient evidence to find that defendant had added sugar, accepting Abraham’s defense that “the laboratory results could have been caused by the natural variation in the pomegranate fruit, growing conditions, harvesting, storage conditions or processing conditions.” (Notably, this seems like a non-denial denial to me.)

Abraham’s good lawyering saved his client a significant chunk of change. According to a declaration filed in the case, Purely Juice has 800,000 bottles in its inventory, each of which retails for $3.79. ($3.79! For juice!)

So what’s the moral here? You can be a busy commercial lawyer and a participant in the great issues of constitutional moment at the same time? Or, perhaps, as various players seek to control the last lucrative, non-commodity, juice market, the great Pomegranate Wars have begun.

Separation of Powers: Pushing the Envelope

Frank Askin of Rutgers has a very interesting take on Congressional options in the face of executive non-cooperation in investigations. Here’s his view:

Instead of referring a contempt citation to the U.S. attorney, a house of Congress can order the sergeant-at-arms to take recalcitrant witnesses into custody and have them held until they agree to cooperate — i.e., an order of civil contempt. Technically, the witness could be imprisoned somewhere in the bowels of the Capitol, but historically the sergeant-at-arms has turned defendants over to the custody of the warden of the D.C. jail.

Askin argues that “no law says that indictment and prosecution by the Justice Department is the exclusive means to enforce congressional prerogative,” and describes some fascinating precedents involving the limits of the pardon power. I had always thought of the sergeant-at-arms office as a bit of a relic, but Askin’s piece demonstrates that Congress may well need to expand it in order to deal with an executive branch unwilling to respect the legislature’s inherent powers.

Another “Massacre” Coming Up?

In 1973’s Saturday Night Massacre, President Nixon and higher-ups at the Justice Department clashed over whether Nixon could fire a special prosecutor investigating executive scandals. Via the ACS Blog, it looks like these issues are going to come up again, as Congress is charging former administration officials with contempt for failure to testify:

“A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case,” said a senior official, who said his remarks reflect a consensus within the administration. . . . [Mark J.] Rozell, [a] George Mason professor and authority on executive privilege, said the administration’s stance “is almost Nixonian in its scope and breadth of interpreting its power. Congress has no recourse at all, in the president’s view. . . . It’s allowing the executive to define the scope and limits of its own powers.”

Once again, a fictionalized satire from The Onion appears more prophetic than funny.

UPDATE: As of 5PM, 338 blogs have linked to the Post story; Memeorandum has a good compilation of legal and other sites (to see them, scroll down the page, put your cursor next to the green Discussion heading and click the plus sign when it appears.).


The Second Amendment Term?

billofrights.jpgDistrict of Columbia Mayor Adrian Fenty announced today that the District will petition the U.S. Supreme Court for certiorari in the landmark Second Amendment case of Parker v. D.C. The District has asked for a 30-day extension of the August 6 deadline for filing its petition.

There has been extensive and lively discussion of Parker, yet I think the legal commentariat has not quite grasped how momentous a cert grant would be. It’s not often that the Supreme Court takes up the core meaning of an entire Amendment of the Bill of Rights, in a context where it writes on a mostly clean slate from the standpoint of prior holdings. If the Court takes the case, then October Term 2007 becomes The Second Amendment Term. Parker would swiftly overshadow, for example, the Court’s important recent cert grant in the Guantanamo cases.

How many Americans would view District of Columbia v. Parker as the most important court case of the last thirty years? The answer must run into seven figures. The decision would have far-reaching effects, particularly in the event of a reversal.

Here is one way to think about the message the Supreme Court would be sending if it reversed the D.C. Circuit on the merits in Parker:

Among the guarantees of the Constitution’s Bill of Rights are the First Amendment’s Establishment Clause and the Second Amendment. The cultural left has traditionally favored a vigorous application of the Establishment Clause. The cultural right has favored a vigorous application of the Second Amendment.

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