Below are the 20 most recent journal entries recorded in Adam H. Morse's LiveJournal:

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Sunday, January 29th, 2006
12:33 pm	Victory in Judicial Elections Case! On Friday, Judge John Gleeson of the Eastern District of New York decided a case that I worked on extensively. He struck down New York State's system for electing Supreme Court Justices, which is to say trial court judges in the court of general jurisdiction. New York used partisan elections but with no primary elections. Instead, the parties nominated candidates through a unique convention system that allowed the party leadership to simply pick the nominees. The Brennan Center brought a suit challenging that system on behalf of a would-be candidate for Supreme Court and a group of voters. We argued that the system violated the First Amendment rights to participate in the election-- NY doesn't have to elect its judges, and doesn't have to give parties a role in nominating candidates, but if it does, it has to give rank-and-file voters a meaningful voice in that system. Judge Gleeson agreed with us on essentially everything, both factually and legally, and has ordered New York to provide primary elections (at least until the legislature implements a new, constitutionally sound procedure). I spent several months working almost exclusively on this case. It's a terrific feeling to win big. Of course, the other side may appeal. But winning at the trial court level is a huge first step. The opinion is available from the Brennan Center's website at http://www.brennancenter.org/programs/downloads/lopeztorres/lopeztorres-decision.pdf (4 Comments |Comment on this)
Saturday, March 27th, 2004
10:39 am	Banks v. Dretke Banks v. Dretke, No. 02-8286. Justice Ginsburg wrote the majority opinion, which the Chief Justice and Justices Stevens, O'Connor, Kennedy, Souter, and Breyer joined in whole and Justices Scalia and Thomas joined in part. Justice Thomas wrote an opinion concurring in part and dissenting in part, which Justice Scalia joined. Capital cases produce an uusual amount of litigation, both during the trial and direct appeal and during collateral proceedings. This case addressed a habeas challenge to both the death sentence and conviction of the petitioner in state court. The prosecution promised before trial that it would provide all of the discovery that the defense was entitled to without litigation. In reality, the prosecution failed to turn over several transcripts that would have provided substantial impeachment value to the defense; moreover, the prosecution failed to take action when its witnesses perjured themselves, with the defense unable to demonstrate the perjury because of the insufficient discovery. Unfortunately, none of this came out until many years later on the petitioner's habeas petition in federal court. The district court concluded that the evidence warranted a writ of habeas corpus, but the Fifth Circuit thought that the danger of a wrongful execution was outweighed by the importance of procedural rules and reversed. The Supreme Court granted certiorari, reversed the decision to not invalidate the death sentence, and remanded for further proceedings on the issue of whether the conviction should be invalidated. The Majority Opinion Justice Ginsburg began by reciting the facts and procedural history. In 1980, a 16 year old boy was killed by three gunshots. Attention quickly focused on 21 year old Banks, who had been walking with the victim prior to his death. Following a call from a confidential informant, the investigating officers followed Banks to Dallas and stopped him on his return trip. They found a gun in his car and arrested the occupants. Returning to the the residence that Banks had visited, they spoke with another person and recovered a second gun, which forensic evidence showed to be the murder weapon. During preliminary proceedings, Banks's defense counsel asked for the identity of the informant. The prosecution refused to answer but later stated that it would provide all legitimate discovery without requiring litigation. At Banks's trial, witnesses told of seeing Banks with the victim and then hearing gunshots. Cook, the witness from whom the police recovered the murder weapon, testified that Banks had stayed with him for several days after the murder, arriving with blood on his leg. Cook quoted Banks as saying the blood was from when he "kill[ed] the white boy for the hell of it." Cook also said that Banks confessed to stealing the victim's car. Cook testified that after a few days, Banks left by bus, leaving his gun behind, and that he then returned on the day of his arrest to request the return of the gun. On cross, Cook denied having received any coaching prior to his testimony. In truth, however, Cook had at least one intensive coaching session where the lead investigator and prosecutors worked with him on developing his testimony. Far from correcting the perjury, the prosecutor argued in summation that Cook had told the jury "absolute truth." The prosecution's other key witness, Farr, testified that he traveled with Banks to Dallas to retrieve Banks's gun. The defense asked whether Farr had been paid by the police for information, but Farr perjured himself by testifying that he had not and that he hadn't talked to anyone about the case until a few days before trial. The state did not correct this perjury. In reality, Farr was the paid, confidential informant who told the police about Banks's trip to recover the gun. He was afraid that if he didn't cooperate, the investigators would pursue drug charges against him. When the police asked him to help recover the murder weapon, he demanded money, and was paid $200 to, in his own words, "set [Banks] up." He told Banks that he wanted the gun to rob a pharmacy for drugs, and Banks agreed to supply him with a gun. The defense presented no evidence and the jury convicted Banks of murder in the course of a robbery. Under Texas law, that is a death-eligible crime, so the jury proceeded to consider the penalty, after considering further evidence. The critical question was whether there was proof beyond a reasonable doubt that Banks would commit further crimes of violence. The state presented two witnesses on that question. The first testified to an incident where Banks struck him in the head with a pistol and threatened to kill him. The second witness was Farr, who testified that Banks had said that he would "take care of any trouble" in the armed robberies they were ostensibly planning. Again, the prosecution remained silent when Farr perjured himself on cross, denying that he told the police about the trip to Dallas and denied that he was concerned about possible drug charges against him. The defense impeached Farr, but only with witnesses who were themselves impeached. In particular, a former police officer testified that he had previously used Farr as a paid informant and had found him unreliable. The prosecution, however, elicited an admission that the officer had a pending application for employment with the defense attorney's private investigator. Banks's family and friends testified that he was a "respectful, churchgoing young man." He also took the stand, testifying that he had never been convicted of a felony. He admitted having struck the first prosecution witness and travelling with Farr to get a gun, but he denied ever having planned on participating in the robberies, a denial that Farr's admissions long after trial proved to be true. In summation, the prosecutor argued that Banks had lied, claiming that he wouldn't have travelled 200 miles to supply someone else with a gun for a crime that he wasn't involved with. He relied on Farr's testimony, stating that the "taking care of trouble" comment demonstrated a willingness to commit further murders, and that Farr had been completely open and honest. The jury sentenced Banks to death. The Texas Court of Criminal Appeals, the state court of last resort for criminal matters, affirmed the conviction and sentence on direct appeal in 1984. After two irrelevant state motions for postconviction relief, Banks brought a claim that the prosecution had withheld evidence that Farr was a police informant and information about the deals that the prosecution cut with Cook to elicit his testimony. The state denied withholding any information and the state court denied postconviction relief. Banks then brought the current claim in federal court. Eventually, Banks was able to procure affidavits from both Farr and Cook in which they admitted their lies. The magistrate judge ordered discovery and an evidentiary hearing. The discovery resulted in the disclosure of a 74 page transcript of a coaching session between Cook and the police. While the transcript did not include evidence of a deal, it did include numerous examples of the police coaching Cook on how to solve "problems" with his testimony. A prosecutor denied that Cook had ever been offered a deal in exchange for his testimony. The police investigator also testified and admitted for the first time that Farr had been a paid informant of his. The magistrate judge recommended granting habeas relief as to the sentence, but not as to the conviction, based on the government's suppression of Brady materials about Farr and the "dismal" performance of Banks's trial counsel during the penalty phase. The district court agreed and rejected Banks's arguments based on the suppression of the Cook transcript on the procedural ground that Banks's habeas petition had not raised the issue. The petition did not, of course, because the state did not divulge the transcript until 1999, three years after Banks filed his petition. The Fifth Circuit reversed the writ of habeas corpus on the death sentence on procedural grounds, in an unpublished per curiam opinion. The Fifth Circuit held that even on the Farr evidence, relief was barred by Banks's failure to exercise sufficient diligence in developing the evidence for his state court proceeding. The court also concluded that the evidence about Farr was not material, because Banks had already presented evidence impeaching him as a police informant. The Supreme Court stayed the execution and granted certiorari. Justice Ginsburg began by noting that the Antiterrorism and Effective Death Penalty Act (AEDPA) did not apply to this case because Banks's claims predate its passage. AEDPA substantially raises the procedural barriers to habeas relief. The majority opinion then considered the Farr claim and the Cook claim separately. Beginning with Farr, the Court started with whether Banks had, as required, exhausted his state court options for remedies. Under Brady, the prosecution cannot constitutionally withhold material evidence that tends to reduce a defendant's culpability, regardless of good faith. In order to prevail on a Brady claim, a defendant must show that the evidence is favorable, was suppressed by the prosecution, and that prejudice ensued. In order to bring a habeas claim that was not fully raised in state court, an inmate must show good cause for not having presented the evidence there and prejudice. When the claim is of a Brady violation, the second two prongs of the Brady test parallel the "cause and prejudice" requirements. Because the fact that a witness was a paid informant is favorable to the defense, as it tends to impeach the witness's testimony, the only questions were whether Banks demonstrated sufficient "cause and prejudice." As to cause, a defendant shows cause for failing to raise a Brady issue when the prosecution encourages the defense to rely on its "open file" policy, fails to disclose evidence, and denies any omissions from disclosure in the state habeas proceeding. Because Banks's case tracks those three requirements precisely, he demonstrated cause. Furthermore, the majority noted, his case was even more extreme than required because of the failure of the prosecution to correct perjurious testimony at trial. The Court rejected any requirement that Banks should have investigated further by locating Farr and eliciting testimony from him, because the defense can reasonably rely on assurances from the prosecution. Justice Ginsburg scorned the notion that the prosecution may lie and the defense must demonstrate those lies in a system based on defendants' due process rights. The state also argued that Banks should have sought investigative assistance in the state court proceedings, but Justice Ginsburg dismissed this as a simple variation of the first issue. Besides, a state court would be unlikely to provide any assistance based solely on the defense's allegations when contradicted by ongoing false denials by the prosecution. The majority also rejected any reliance on precedents that allow the police to conceal an informant's identity, because those precedents do not apply when the informant is called as a witness. The majority then turned to the question of whether the evidence was "material." The question under the relevant precedent is whether the new evidence puts the whole case in a different light, undermining confidence in the verdict. The question is only whether the defendant showed a reasonable probability of a different result. Farr's evidence was central to the penalty phase. In particular, the prosecution relied in its summation on Farr's testimony that Banks was willing to participate in another crime, not on his admission that he helded supply Farr with a gun. Because Banks had no prior record, Farr's testimony was essential to proving the propensity issue for the death penalty. The Court distinguished prior cases where the evidence had been amply corroborated and was mostly cumulative. Here, the evidence was central to the government's penalty phase case and the concealed evidence showing that the witness was a paid informant, in fear of conviction for his own crimes, and willing to perjure himself in multiple regards, went directly to the strength of the government's case. In light of those suppressions, the Court concluded that it was impossible to be confident that Banks received a fair trial in the penalty phase. Justice Ginsburg then turned to the Cook evidence, in the section of her opinion for a unanimous Court. The lower courts did not consider this evidence because they considered it insufficiently plead in the habeas petition. In response, Banks argued that Fed. R. Civ P. 15(b), which treats a pleading as amended to incorporate issues tried by implied or actual consent of the parties, entitled him to treate the pleading as having been amended to cover the issues raised by the Cook transcript. The lower courts held that Rule 15(b) does not apply in habeas proceedings, but the Supreme Court disagreed. While AEDPA includes a requirement that the prosecution expressly waive procedural defenses, no such rule existed pre-AEDPA. Because the Fifth Circuit erred in not considering the Cook issue because of procedural grounds, the Court remanded for further consideration. The Court thus granted a writ of habeas corpus on the death sentence and remanded for further proceedings on the conviction. The Partial Dissent Justice Thomas wrote a brief dissent from the conclusion that withholding the Farr evidence prejudiced Banks. He argued that, while it was a close call, the jury would not have changed its opinion, because it was faced with evidence of a horrible crime and that the defendant had admitted that he was willing to supply Farr with a gun to facilitate Farr's violent crimes. As a result, Justice Thomas concluded that even if the jury totally disregarded Farr's testimony, it would have sentenced Banks to death, and thus Banks failed to show prejudice. While the dissent did not reach the issue of whether Banks showed sufficient cause, Justice Thomas stated his doubts, relying on the state's claim that it did not "knowingly" fail to turn over any evidence for the proposition that the state may have been unknowing in its failures, and that Banks should not have relied on that statement as much as he did. Justice Thomas also briefly dismissed Banks's ineffective assistance of counsel claim, which the Court did not reach. Analysis This is an easy case. The only thing difficult about this case is figuring out how two justices could have gotten it wrong. Prosecutorial misconduct cuts to the heart of our confidence in the criminal judicial system. Nothing is more damaging to its integrity than a prosecutor permitting perjury by a witness who is in the employ of the police. In the same way that fraud statutes of limitations do not run until the fraud is or should have been discovered, when the prosecution fails in its obligations to disclose exculpatory information, courts should have little patience with procedural arguments that fault the defendant for failing to raise the issue earlier. Similarly, the question of prejudice is easily resolved by the fact that the prosecution relied on the evidence in its summation. The prosecution clearly believed that the false testimony mattered, because it focused the jury's attention on it. While that could happen where the false evidence was simply the most extreme evidence in a huge pile of evidence, that was not the case here. A jury could reasonably conclude, if it knew all the truth, that the prosecution had been forced to rely on purchased lies because it could not actually demonstrate, with the high degree of confidence of "beyond a reasonable doubt," that Banks remained a danger. In any event, the consequences of granting relief are low: the state remains free to empanel a new jury for a new penalty phase. But the consequence of denying relief are very high. First, a prisoner may be executed under circumstances where a properly informed jury would have sentenced him to a lesser penalty, perhaps life without parole. Second, and at least as important, denying relief sends the signal to prosecutors that these sorts of games are acceptable. If one of your witnesses lies, go ahead and let 'em, because even if it comes out, the courts may let the conviction stand and the worst that happens is a new trial. On the other hand, if you correct the lie and your case is hurt, you're stuck with that result and don't get a second bite at the apple. That sort of incentive is a disaster. Prosecutors need to be the purest white knights, playing hard and zealously representing the state but turning perfectly square corners and living up to the highest ethical standards of the bar. In order to ensure that, prosecutors have to be confronted with heavy deterrence when they fail to live up to their obligations. I'm not even convinced that any test for prejudice provides enough deterrence. But even if some test for prejudice makes sense, to avoid the costs of retrying cases with overwhelming evidence, it should be limited to cases where the evidence is truly overwhelming. Finally, it's worth noting the racial overtones, which the Court neglected. Cook testified that the defendant killed "the white boy." While the Court presented no evidence that he was coached on that, it's worth considering, especially because of the clear racial bias in the application of the death penalty to state-law murder cases: blacks who murder whites are vastly more likely to be executed than in other victim-offender race combinations. Testimony that brings the race of the victim to the attention of the jury is inherently worrisome, although it may be proper in cases like this where it represents a direct quote. Combining racially oriented testimony with evidence that the state coached the testimony and a failure to provide the defense with the evidence it needed to respond makes those worries far more troubling. (3 Comments |Comment on this)
10:36 am	Lamie v. U.S. Trustee Lamie v. U.S. Trustee, 02-693. Justice Kennedy wrote the majority opinion, which was joined by Chief Justice Rehnquist and all the associate Justices except for Justice Stevens and, as to one section, Justice Scalia. Justice Stevens wrote an opinion concurring in the judgment, which Justices Souter and Breyer joined. Scrivener's errors are errors introduced inadvertently in the drafting of a statute when a staffer fails to write the law correctly and no one notices in time. Applying statutes with scrivener's errors creates a persistent problem: should the courts follow what the law says, or what Congress meant it to say? In this case, the Supreme Court addressed when attorneys can receive fees from a bankruptcy estate in a chapter 7 proceeding. Applying section 330 of the Bankruptcy Code despite the possible error, the Court affirmed the decisions of the courts below that attorneys are only entitled to fees if they have been appointed under section 327. Because the legislative history indicates that Congress was aware of the error, the Court's decision is correct. The Majority Opinion Justice Kennedy began by describing the statutory history. Congress amended the Bankruptcy code in 1994. Congress amended one of the provisions, section 330, and eliminated the phrase "or to the debtor's attorney" from the list of professionals who can receive fees in a bankruptcy proceeding. The new text is grammatically flawed, because it lacks a conjunction, and is not parallel with a subprovision's language, which retains the phrase "or attorney." Section 330 still allows compensation of an attorney who is "a professional person employed under Section 327." The circuit courts have split as to whether it still permits an attorney who is not employed under Section 327 to receive compensation. Justice Kennedy then described the procedural history. The petitioner represented a firm in its chapter 11 proceeding, while the firm acted as a debtor-in-possession. After three months, the U.S. Trustee moved to convert the proceeding into a chapter 7 liquidation, and the court granted the motion. The petitioner had been acting under section 327, but he continued to represent the firm in the chapter 7 proceedings despite no longer being covered under section 327. He then filed for fees after the conversion to a chapter 7 proceeding, the trustee objected, and the bankruptcy court denied the fees, although he was compensated for his services during the chapter 11 proceedings. The district court and Fourth Circuit Court of Appeals both affirmed, noting that the plain language of the statute only provided for fees for attorneys appointed under section 327. The Supreme Court granted certiorari to resolve the circuit split. The majority opinion started the analysis by reciting the petitioner's arguments for why the statute is ambiguous. The petitioner argued that the statute contains a clear error, because the lack of parallelism demonstrates that Congress either erred by deleting the first reference to attorneys or by retaining the second reference. He also argued that the missing conjunction demonstrated the existence of a drafting error that rendered the meaning of the provision ambiguous. The Court rejected the analysis that ambiguity can be created by comparing the current statute's grammatical flaws with the unflawed statute before amendment. Instead, the Court reasoned, if the statute is ungrammatical but clear, its clear meaning should be applied. The missing "or" does not create any ambiguity because the word that should be included was obvious. While the text is not parallel, the second reference to attorneys can be sensibly interpreted as referring to lawyers who are professionals appointed under section 327. While it is surplusage, the preference for reading a statute to avoid interpretations that make some words surplus is weaker than the preference for applying the plain meaning of the words. The Court also considered and rejected the suggestion that the statute was absurd under the appeals court's interpretation. The petitioner suggested that this would unreasonably eliminate the availability of attorneys for debtors in bankruptcy. However, attorneys for personal bankruptcies can still receive compensation under another provision, and attorneys who are properly appointed under section 327 by the trustee can still receive compensation under this provision. Prior to the Chapter 7 proceeding, the debtor can prepay for a lawyer's services. To avoid expanding on Congress's command, even if that command is harsh, the Court held that the statute should be given its plain interpretation. Justice Kennedy then wrote another section, for a smaller majority of seven because Justice Scalia refused to join it. He noted that the legislative history adds more confusion, rather than clarifying the meaning of the provision. No legislative history explains the change, suggesting that it may have been a scrivener's error. However, other changes were apparently intended to reduce abuses in fee awards. Furthermore, while Congress took with one hand, it gave with the other, putting in a new section authorizing fee awards in chapter 12 and 13 personal bankruptcies, suggesting that the omission in the chapter 7 and 11 context was deliberate. In any event, the House passed the provision after the omission, and its effect, was drawn to its attention by a professional organization representing the attorneys most likely to be effected, which noted the change but did not object. In light of that history, Justice Kennedy concluded that the Court could not be confident from the legislative history, thus encouraging reliance on the plain text. If Congress did not intend this result, it retains the power to amend the statute. The Concurrence in the Judgment Justice Stevens wrote an extremely brief concurrence. He began by stating that when there is a possible scrivener's error, the courts should look to the legislative history to determine whether the error should be corrected through judicial interpretation. He then noted that the error, if any, was brought to the attention of Congress, which declined to correct it. Combined with the fact that the majority's interpretation is much more natural based on the language, he agreed that the petitioner's interpretation should be rejected. Analysis The interesting question in this case is process. The justices followed three different approaches to dealing with a possible scrivener's error. Justice Scalia took the extreme position, although without writing separately: relying on the fact that the language could be sensibly interpreted without looking at the legislative history, he declined to consider it at all. Justice Kennedy took a middle route: while he says that the statute is unambiguous, and thus that examining the legislative history is unnecessary, he examined it anyway, and concluded that it did not provide a clear answer. Justice Stevens takes the most extreme approach in the other direction: because the text, while intelligible, suggests an error on Congress's part, he looked to the legislative history, but concluded that the legislative history supports the more natural interpretation. Justice Stevens's approach is the strongest. Scrivener's errors raise a special problem of statutory interpretation, because effectuating the will of the legislature can be at odds with giving effect to the text as its actually written. Justice Scalia's approach treats this as a highly formalist game. If Congress makes an error, too bad for them: an error introduced by sloppy editing is the same as a formal policy choice, carefully made. I think this misstates the courts' role in interpreting statutes. Courts should seek to effectuate the will of the legislature. When the text is clear, it should be followed. But where there is evidence that Congress simply screwed up, forcing Congress to take action is pointless. It's true that Congress can fix its errors, but that's true either way. The question is which side of the question should be given the tremendous advantage of inertia. After all, this circuit split persisted for years: one of the sides was wrong, but Congress, because of the demands on its schedule and possible splits of opinion, did not correct either interpretation. Allowing an error by a staffer to shape the law until Congress musters the will to act serves no sensible purpose. However, once Congress was made aware of the possible error before passing the law, that analysis falls apart. If it was a scrivener's error, it's safe to say it would have been fixed before the law was passed; at the drafting and debate stage, fixing an error has relatively low costs. As a result, the statute should be given its straight-forward reading, because Congress ratified any possible error through inaction. (6 Comments |Comment on this)
Monday, March 15th, 2004
6:35 pm	The Iraqi Interim Constitution, part one Iraqi Interim Constitution As most people who follow the news probably know, the Governing Council of Iraq recently signed the "Law of Administration for the State of Iraq for the Transitional Period," better known as the interim constitution. I believe that it is now a binding document, although it does not go into force until 30 June 2004. Because it's an important issue, and because institutional design is an inherently interesting topic, I'm posting a discussion of the document. I should note that I have no expertise in Iraq; at best, I'm a reasonably informed layperson when I talk about the Middle East in general. I may miss the significance provisions; for example, a few sections repeal laws and decrees from the Hussein period, and I don't know what those laws did. But I do specialize in constitutional law, so I'll provide what analysis I can. For anyone who wants to check it out, the full text of the English translation of the interim constitution is available on the Coalition Provisional Authority's website. Overall, the interim constitution is very positive. It has at its heart a core commitment to pluralistic democracy. It guarantees expansive rights and liberties, including requiring gender-equality, condemning racism, and guaranteeing rights of free speech and freedom of religion. Equally importantly, it provides remedies for violations of those rights. On religion, it describes Islam as the official religion, as "a source" for legislation, and forbids legislation contrary to the universal interpretation of Islam. At the same time, it provides extensive guarantees for adherents of minority religions and rejects sectarianism among Islamic sects. The constitution shows the influence of American constitutional law clearly. While it deviates in some major ways from American constitutional law, the drafters borrowed liberally from concepts that were viewed as useful. All in all, it would be a good constitution to live under, although I'm concerned about the vagueness of the election provisions. The great question is how much of the liberal democratic values that it embodies will be carried over into the permanent constitution. That question will determine whether the interim constitution is a great step forward. I will follow the structure of the Law itself in my analysis. The Law is structured into nine chapters, which are subdivided into 60 articles, and a preamble, which "is an integral part of this Law." The first chapter lays out the fundamental principles underlying the Law. The second chapter is a bill of "Fundamental Rights." The third chapter provides an overview of the transitional government and a variety of principles that apply to all of its branches. The fourth through sixth chapters describe the legislative, executive, and judicial branches of the Iraqi government. The seventh chapter provides for the continuance of the Iraqi Special Tribunal, which has jurisdiction over crimes against humanity committed by Iraqis between 1968 and 2003, and some other special commissions. The eighth chapter provides for regional, governorate, and municipal governments. Finally, the ninth chapter governs the transition to a permanent constitution. Chapter 1- Fundamental Principles The first chapter contains some definitions, basic principles, and interpretive rules for the rest of the Law. It states that gender-specific language applies equally to men and women. It defines the transitional period, which is to run from 30 June 2004 with the formation of a fully sovereign Iraqi government until the adoption of a permanent constitution, which is supposed to happen by 31 December 2005, although the Law includes provisions for failure. I don't have the expertise to comment on whether the schedule makes sense. The Law is the "Supreme Law of the land" throughout Iraq, and cannot be amended without a 3/4 majority of the National Assembly and the unanimous consent of the Presidency Council. Furthermore, it cannot be amended to abridge the rights set forth in Chapter Two, to extend the transitional period, delay the holding of elections, reduce the powers of regions or governorates, or "affect Islam, or any other religions or sects or rites." The system of government is defined to be "republican, federal, democratic, and pluralistic," with the federal units based on "geographic and historical realities … and not upon origin, race, ethnicity, nationality, or confession." The armed forces are placed under civilian control, and the Transitional Government is required to end the vestiges of the Hussein government's oppressive acts. Article 7 contains the crucial language about the role of Islam. Islam is the official religion of the state and is "a source of legislation." That language is a very moderate statement about the role of Islam; Egypt's constitution, I'm told, states that Islam is the "primary source of legislation," and some people pushed for that language in Iraq. In any event, it's not clear whether this language has any real impact beyond hortatory value; inevitably, the religion of the majority of the populace will be "a source" for legislation. The next provision could easily turn into a major constitutional battleground: "No law that contradicts the universally agreed tenets of Islam, the principles of democracy, or the rights cited in Chapter Tow of this Law may be enacted during the transitional period." There could easily be dispute over what the "universally agreed tenets of Islam" are. Taken literally, this would have little force; I'm sure that people assert a bewildering array of different positions as tenets of Islam, and anytime there's dispute it isn't "universally agreed." In fact, it's hard to imagine a majority Moslem country enacting a law that violates the "universally agreed" tenets of Islam. Of course, courts may conclude that universal agreement doesn't preclude disagreements that are simply beyond the pale. For example, if a similar provision mentioned the "universally agreed tenets of Christianity," would that be limited to Catholic positions? It shouldn't be, based on the text, but some Catholics would argue that Catholicism represents the only true interpretations of Christianity. But that position wouldn't be very tenable in a country with both a significant Roman Catholic population and a significant Eastern Orthodox population. But they might still argue that it excludes Protestants, who, in the views of some, have left Christianity altogether. Even if they were willing to include mainline Protestants, what about Latter-Day Saints? Or Unitarians? I don't mean to single out Catholics here; plenty of Protestants, mostly in the evangelical charismatic movement, argue that Catholics aren't really Christians. My point is just that there are plenty of Christians who would argue that, for example, a prohibition on homosexual conduct is part of the "universally agreed upon tenets" of Christianity. In fact, I believe that argument was made in the heresy trial of an Episcopalian bishop who ordained a sexually-active gay man as a priest. And plenty of other self-described Christians would argue that position can't be right, because we disagree with that tenet. The ecclesiastical court agreed when it acquitted the bishop. So while I mostly think that this language is reasonable hortatory language without much enforceable content, I worry that it may provoke lots of fights over its meanings and that those fights may have sectarian overtones. Many of my concerns are allayed by the fact that the next sentence "respects the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice." The fundamental principles also recognize that Iraq is a country of many nationalities, but notes that the "Arab people in Iraq are an inseparable part of the Arab nation." This may also be empty verbiage without legal force. If it is enforceable, I have no idea what it means. The fundamental principles close with a protection of language rights. The Law declares both Arabic and Kurdish to be "official languages," but also guarantees rights to teach other "mother tongues" such as Turcoman, Syriac, or Armenian to children in state schools, and the right to teach in any language in private schools. The official languages status affects both government proceedings and documents and guarantees the use of both languages in "settings enjoined by the principle of equality (such as bank notes, passports, and stamps)." I'm largely indifferent to official languages in general; I worry that they are used as a source of exclusion and discrimination against language minorities. At the same time, I worry about the proliferation of minority languages, because speaking the majority language has tremendous economic benefits by opening up huge opportunities. One of Iraq's most fundamental problems on a forward-going basis will be struggling with pluralism. If they're going to make it work, they need to ensure that major ethnic groups feel part of the nation. In that light, putting Kurdish on an equal footing with Arabic may be the right thing to do, and may be worth elevating both to an official language status. That's particularly true because the section has reasonable protection for smaller minority languages. I'm a little worried that Farsi isn't among the examples of "mother tongues," because that might represent anti-Iranian prejudice, but I haven't been able to confirm the size of the Iraqi Farsi population, except to determine that it's substantial but not huge. Chapter Two: Fundamental Rights Chapter Two includes an extensive list of fundamental rights. Many of the rights protected are interesting and worth mentioning. Equally interesting are the rights that are not protected, especially because this section is so obviously influenced by the United States Bill of Rights. The Chapter begins with a statement that both the national and all local and regional governments within Iraq will respect the rights of the Iraqi people. This is probably intended primarily to make it clear that the chapter does not only restrict federal action, in the way that the U.S. Bill of Rights only restricted federal action until the adoption of the Fourteenth Amendment. The first substantive right is a guarantee of citizenship for any who "carry Iraqi nationality." Iraq has a long history of taking away citizenship from people or groups that the government disliked. Article 11 forbids this prospectively, by stating that no Iraqi may have citizenship withdrawn or be exiled except for lying during a naturalization process. The Article also restores citizenship to all Iraqis who lost citizenship because of "political, religious, racial, or sectarian reasons" or because of acquiring another citizenship. The Article authorizes the National Assembly to pass laws pertaining to citizenship and naturalization. This Article is crucially important because it undoes the various efforts to remove citizenship from disfavored groups. Prior discussions had suggested that the Governing Council might try to restore citizenship to all former citizens except for Jewish Iraqis. Approximately 250,000 Iraqis had their citizenship revoked because of their religious heritage. Including them among the other Iraqis whose citizenship is restored sends an important message about pluralism and inclusiveness. There are some forward-going questions that the Article does not clearly resolve. For example, if someone had his citizenship removed a long time ago, has moved to a different country, and has grandchildren whose only connection to Iraq is their grandfather, are the grandchildren entitled to Iraqi citizenship based on Iraqi nationality? I'm not sure. The fact that they are citizens of another country doesn't bar Iraqi citizenship, but it's a little unclear what "Iraqi nationality" means in cases like this. Also, it's unclear that this would forbid the existence of non-citizen resident groups. I'm not sure whether Iraq has similar groups, but many countries have substantial populations of non-citizens whose families have lived in the country for generation, because citizenship is considered tied to "nationality," where "nationality" is a code-word for ethnic or racial bias. The ethnically Turkish population in Germany and the ethnically Korean population in Japan are obvious examples. I would have ideally wanted a rule like the American rule: anyone born in the United States is automatically a U.S. citizen. A similar rule in the Iraqi case would eliminate concerns about the existence or development of disfavored resident foreign populations. Nonetheless, that's primarily a concern for the permanent constitution, and the blanket reversal of all of the citizenship deprivations is an important step forward. The next Article is a strengthened version of the Equal Protection and Due Process Clauses. It states that "All Iraqis are equal in their rights without regard to gender, sect, opinion, belief, nationality, religion, or origin, and they are equal before the law." It prohibits discrimination on the basis of gender, nationality, religion, or origin, although curiously "sect" and "belief" are not repeated. It also guarantees a right to life, liberty, and "the security of his person." The Article also forbids deprivations of life or liberty "except in accordance with legal procedures." Many things about this Article are interesting. First, its protected classes are very broad; U.S. law permits some gender-based discrimination, although some states have equal rights amendments and gender-based classifications need to serve "important" government interests. Article 12 appears to offer broader protections. As a strict-egalitarian, I'm very glad to see that protection, especially because one of the grave concerns about Iraq is whether women will be treated with equal respect and rights under the new regime. I'm curious about the use of the term "gender." Although legal usage is not consistent, "gender" is typically used by academics to cover a wider range of issues than physical sex. Discrimination on the basis of self-perceived sex identity or sexual orientation would frequently be described as falling under the general rubric of "gender discrimination," even though some would argue that it isn't strictly speaking sex discrimination. I'm curious whether "gender" is an accurate translation, or whether the protection is limited to prohibiting sex discrimination. It's quite possible that it's ambiguous even without the translation. Another interesting point is in the "Legal Procedures" clause. By referencing deprivation of life in accordance with legal procedures, it implies that capital punishment is constitutional. Capital punishment is very common in the Middle East, and it's unsurprising that a U.S. influenced Middle Eastern constitution would permit it, but it's still notable. Finally, it's notable that the anti-discrimination clause doesn't have an explicit state-action requirement. In American law, the Equal Protection Clause only protects against discrimination by the government, although a variety of statutes provide protection against private discrimination in employment, housing, and public accommodations. But the American Equal Protection Clause is phrased as "No State shall…" Especially because the Law was written with a clear familiarity with American constitutional law, this raises the question of whether the anti-discrimination clause is intended to sweep more broadly, prohibiting private as well as public discrimination. It could be argued that the first article of Chapter Two limits its effects to public action; also, the right of redress later in the Law is limited to government officials. But it's an interesting question, and I don't think the text of the Law makes the answer clear. Article 13 protects a variety of "public and private freedoms." In addition to the blanket statement that "public and private freedoms shall be protected," Article 13 protects freedom of expression, peaceable assembly, including unions and political parties "in accordance with the law," freedom of movement throughout Iraq and to travel abroad and return, a right of demonstration and of peaceable strikes, a right to freedom of "thought, conscience, and religious belief and practice," a prohibition on slavery, the slave trade, and related practices, and a right to privacy. This amendment protects many of the key freedoms for a democratic, free society. Democracy cannot flourish without strong protections of assembly, speech, and demonstration, so those rights are basic to a democratic Iraq. The protections for unionization and striking are quite broad; while there is the "in accordance with the law" weasel language, there is also a universal right to strike, which stands in sharp contrast to American practice, where various types of strikes are illegal, including sympathy strikes, striking the suppliers and customers of a firm targeted by a strike, general strikes, and strikes by most public employees. This is also a good place to note how broad the religious protections are. Religious practice is protected as well as religious belief. The American Free Exercise clause has been interpreted stingily, to protect religious beliefs while still allowing facially neutral laws to be applied even when they prohibit core religious practices. The classic example is the peyote case, where the Supreme Court upheld the application of drug laws even when they prohibited a small religious group from engaging in a core sacrament of its faith. A similar example is the nineteenth century prohibition on polygamy, which was directly targeted at the Church of Jesus Christ of Latter-Day Saints. It's worth noting that some scholars argue that the polygamy laws would have been struck if the issue came up today, because they were passed on the basis of anti-religious animus, in the same way that laws that were passed to ban animal sacrifice because of hostility to Santeria have been struck down. But the point remains that religious groups in the United States can have their core religious practices stamped out, as long as the government is simply applying a neutral law without providing a carve out. I think this approach is wrong, because it invariably leaves small religious groups less protected than large ones. Dry areas of the United States, and for that matter most of the country during Prohibition, routinely created exemptions for sacramental wine. When a majoritarian, or powerful minority, religion has its practices threatened, the legislatures create exceptions. But when it's a small faith, especially if it's a discriminated against or distrusted faith, no exceptions are made. By specifying that the religious protection includes "practice," the Law appears to be providing that important broader protection. This could easily come up in important practical cases: some regions of Iraq may well ban alcohol, in accordance with the Koran's injunctions, and the "practice" clause would presumably protect Christians who use sacramental communion wine. This reinforces my overall attitude towards the choice to establish Islam: while I'm disestablishmentarian, the important goal is protecting those who do not share the majoritarian religion from religious oppression. The strong, repeated language is very reassuring on that front. Of course, like any constitutional provision, whether it's worth anything depends on how well it is enforced. The right to privacy also raises interesting questions. How far does that extend? What constitutes privacy? Is the Law endorsing the whole line of American privacy cases, including Roe v. Wade? I don't really know what this means. It's a good value to defend against governmental intrusion, but like any vague constitutional provision, it raises serious concerns about interpretation. Article 14 includes a set of positive rights, in the sense of rights to goods that the people can demand from the government, as opposed to the negative rights embodied in the American Bill of Rights, which are rights that the government may not infringe. These rights include unqualified rights to security, education, health care, and social security, and a mandate that the government "shall strive to provide prosperity and employment opportunities," while taking into account resource issues and "other vital needs." Positive rights are common in many foreign constitutions and some state constitutions include rights to education and so forth. Including these rights provides a laudable set of expectations on the government and may deliver some concrete protections. The lack of educational guarantees in the American constitution has left some poor and disempowered communities with little recourse when politicians refuse to address failing schools. Still, positive guarantees are difficult to enforce, especially because they involve trade-offs. A right to education is important, but it's difficult for courts to judge whether a school is good enough to satisfy that right, especially when increasing teachers' salaries may be key to improving education but may also require reducing the money available for police, or raising taxes to preserve both. Those trade-offs are frequently left to legislatures simply because courts are ill-suited to balance the competing interests. Still, a basic right to security, education, and so forth makes sense and may prevent egregious failings. It's worth noting that egregious failures to provide education, especially for girls, are common in the Middle East, not to mention the frequent governmental violations of any notion of security under the Hussein regime. Trying to break that legacy may be worth risking intractable struggles at the margins. Article 15 provides a variety of procedural rights, primarily in the criminal procedure context. It begins with a restriction on ex post facto laws: civil laws must expressly provide for retroactive force in order to be applied that way and criminal laws and punishments cannot be retroactive. The next section creates a search warrant requirement for searching private residences. The section describes the basic state of American Fourth Amendment law, including provisions for exigent circumstances. Interestingly, the law explicitly includes an exclusionary rule, making evidence found in the course of an illegal search inadmissible in connection with a criminal charge. The exclusionary rule includes an exception for reasonable, good faith errors, but also extends to excluding "fruits of the poisonous tree," which is evidence gathered as a result of information gained in an illegal search. Interestingly, there's no exception for inevitable discovery doctrines that sometimes allow in fruits of illegal searches in the American system. The Article also includes a prohibition on political or religious detentions and a right to a fair and public hearing followed by a fair, speedy, and open trial. The law includes many of the basic Miranda rights, including the right to be notified of the underlying rights: innocence until proven guilty, right to independent and competent counsel, right to remain silent with no compulsion to testify, and a right to summon and examine witnesses in defense. It also includes a ban on double jeopardy and on the use of military tribunals or exceptional courts to try civilians. The Law also bans torture "under all circumstances," including mental torture as well as physical, and "cruel, inhuman, or degrading treatment." Crucially, there is also a complete exclusionary rule for any confession made under "compulsion, torture, or threat thereof." Article 15 hits all of the major points needed to have a fair criminal justice system. Including exclusionary rules is a good thing; while there are a variety of potentially valid criticisms about their use in the American system, there needs to be a strong incentive to not violate the underlying rights, and especially in a country without a strong tradition of rule of law, strong deterrence for government misconduct is appropriate. There are several interesting omissions, however. First, while there is a right to "engage" counsel, there's no textual provision for supplying counsel to defendants who cannot afford a private attorney. That raises serious concerns; in any modern criminal justice system, the advice of competent counsel is essential to receiving fair treatment. Without a Gideon right, many poor yet innocent defendants face a serious danger of convictions. Second, the right against self-incrimination lacks much of the elaboration that American courts have given it. For example, there's no textual description of attorney-client privilege. I'm skeptical of the merits of attorney-client privilege, except maybe on the theory that we don't want to disadvantage people whose attorneys play clean when we expect that many attorneys would routinely suppress evidence if there wasn't a privilege. But it's still an interesting omission. Similarly, it's very interesting that there's no prohibition on drawing adverse inferences from a refusal to testify. Under modern American law, judges instruct juries to not draw inferences from a defendant's refusal to testify. I suspect juries draw those inferences anyway, but they're told not to. That contrasts with the British system, which also has a right to remain silent but where judges instruct juries that they may draw conclusions from the defendants' decisions to not testify. Given a document that includes many doctrines, such as the exclusionary rule, that were created in the American system as judicial glosses on general prohibitions, the choice to omit this gloss becomes significant. It's also notable that there's no right to jury trial. The lack of the jury trial may explain the lack of protection against presumptions based on refusing to testify, but it also raises interesting questions about how the exclusionary rule will work. Will they have one magistrate make the exclusion decisions while another, protected from the illicit information, makes the findings of fact? Or will they simply rely on the judges to "fire-wall" that information within their minds? Jury trials are only common in the Anglo-American common law tradition. Most civil law countries do not use juries for fact-finding, although some have limited roles for lay judges in some cases. I'm not surprised that they're not included as a right in the Law, but it's still worth noting. The Law also does not include "proof beyond a reasonable doubt." Courts may read that into the principle that defendants are innocent unless proven guilty, and the U.S. Constitution also lacks a textual requirement of the high burden of proof in criminal cases, yet American courts routinely consider it to be a constitutional requirement. However, the lack of any discussion of the government's burden of proof in a criminal trial seems odd, especially in light of the more vague language that the Law does include to protect criminal defendants' rights. Article 16 protects property rights. It includes a duty of all Iraqis to protect public property; I'm not sure what that's addressed to. It also includes a general right of alienability, by specifying that "no one may be prevented from disposing of his property except within limits of law." Again, there's weasel-language there, but promoting the alienability of property is important to developing a healthy market economy, which in turn will promote Iraqi prosperity. There is also a Takings clause: property may only be taken through eminent domain, according to law, and with a requirement of "just and timely" compensation. That strikes the balance right, in my opinion. Eminent domain is an important government power for preventing inefficiencies and for organizing effective markets by preventing hold-outs and breaking up monopolistic holdings. But a requirement of compensation reduces its danger as a sword to hurt disfavored or politically powerless groups. The Law doesn't address the American doctrine of "regulatory takings" at all. That seems like a poor choice; there are important policy concerns tied up in the doctrine, and I would have preferred to see it addressed. But those concerns are less likely to be significant in the early days of a new regime, so it may make some sense to avoid the question. In any event, the American doctrines are bizarre, complicated, and ill-considered, so I'm just as happy that the drafters did not seek to import the doctrine into Iraqi law. Finally, Article 16 includes a right for Iraqi citizens to own real property in all parts of Iraq without restriction. That's an important right, because it cuts against insular regimes and the notion that certain land inherently belongs to certain people because of historic patterns of ethnic control. At the same time, this is interesting because it implies that restricting foreign land ownership is legal. Land ownership is a touchy issue throughout much of the Islamic world, at least in part because of a history of abusive practices by European powers, but perhaps also related to various intra-Moslem struggles between ethnic groups over who would ultimately control the land. While I would prefer to see even foreign land ownership rights protected, this seems like a reasonable solution to address the fears and concerns of the population while still guaranteeing the ability of individual Iraqis to own property wherever in Iraq they please, regardless of the opinions of other ethnic groups. Article 17 is the negation of one of the amendments in the United States Bill of Rights: it prohibits possessing, bearing, or trading in arms except on licensure. I'm not a fan of the Second Amendment as it is frequently interpreted by its supporters. The hope of defending against government oppression through armed resistance requires possessing serious military weapons, which inherently cuts against the ability to police safely. I like leaving the policy questions about how to balance self-defense concerns against public safety arguments to the legislature, so I like the way this Article reads. I have my own wacky interpretation of the Second Amendment as guaranteeing a right to participate in military service, and I think that interpretation is both sensible and wise. But I can't really fault the Law for not including some sensible ideas that are outside the mainstream of constitutional theory. The next article sensibly bans taxation and fees that aren't created by laws. This seems like a pretty straightforward ban on a certain type of injustice. Similarly, Article 19 prohibits surrendering or forcibly returning any political refugee who has been granted asylum according to law. This is a perfectly sensible protection, although the real meat of any asylum protection is the definition of who is entitled to asylum, which the Law does not address. This is a recurrent problem with the Law; it contains lots of good language, but with weasel-words and important questions lurking just below the surface. That's difficult to avoid in drafting a constitution, but it still sets off warning bells. Article 20 guarantees fundamental voting rights, but again has the weasel-words. "Every Iraqi who fulfills the conditions stipulated in the electoral law has the right to stand for elections and cast his ballot…" But what will the electoral law say? That's a crucial question. For example, can people who have been convicted of serious crimes be deprived of the vote? That's a hot issue around the world; South Africa's constitutional court just struck down a law preventing prisoners from voting in elections. In the U.S., most states prevent prisoners from voting, and some ban people with felony convictions who have finished their sentences from ever voting again. Most of those laws were passed to disfranchise African Americans. Can the electoral laws ban people with convictions for serious crimes from voting? It's hard to tell from the text. Later, when the qualifications for office-holders are listed, it excludes people with convictions for crimes of moral turpitude. That suggests that it doesn't violate this constitutional provision, which after all applies to both standing for elections and casting a ballot. However, the Law also applies a minimum age requirement of 30 and a requirement that candidates must "have a good reputation." Could similar laws be applied to limit the franchise? Presumably some age requirement would be constitutional, because otherwise infants would be able to vote—there's no constitutional age requirement for voting. In any event, the weasel words worry me. Still, the breadth of the guarantee is encouraging. Elections are required to be secret ballot, free, open, fair, competitive, and periodic, and the Law forbids discrimination in voting rights "on the basis of gender, religion, sect, race, belief, ethnic origin, language, wealth, or literacy." As a lawyer who works on a lot of constitutional cases designed to improve democracy, I'd love to be able to make claims based on the "Competitive Elections" Clause. The sweeping protections here are good and a lot better than anything in the text of the United States Constitution, which says remarkably little about democracy. I'll discuss my more general concerns with the need for more descriptions of how elections will function when I discuss the structural provisions of the Law. The Law forbids the federal or local governments from interfering with the development of a civil society, "whether in cooperation with international civil society organizations or otherwise." Again, I'm not really sure what this is getting at. I think it's meant to protect Iraqis who want to work with international NGOs and the like, which certainly seems like a good idea. But I'm not sure if it has any consequences beyond that. Article 22 provides a remedy for violations of rights guaranteed by the Law or by other laws in force. For people familiar with American law, it essentially incorporates 42 U.S.C. Sec. 1983 into the constitution. If a government official at any level of government deprives any individual or group of their rights, they have a right to bring a damage action seeking compensation, vindication of the rights, which I take to mean declaratory relief, and "any other legal measure," which I assume means injunctive relief, meaning a court order against future violations. Article 22 also incorporates what American law calls "qualified immunity": if a government official acts with a "sufficient degree of good faith and in the belief… that his actions were consistent with the law," he cannot be made to pay compensation. I'm troubled that this requirement doesn't have any requirement that his belief be reasonable, which the American qualified immunity doctrine does. While I wouldn't be surprised to see it read in by the courts, I would have preferred to see it included specifically, especially because courts may refuse to read in that requirement by comparing it to the "reasonably and in good faith" exception to the exclusionary rule in Article 15. It is also notable that the Law does not include a provision for fee shifting: one of the reasons Sec. 1983 has been so successful in constraining unconstitutional abuses by American government officials is Sec. 1988, which provides that defendants who lose cases brought under 1983 must pay the reasonable attorneys' fees of the plaintiffs. That produces a reasonable supply of lawyers to represent people with strong claims that their constitutional rights have been violated. The Law does not include a similar provision for plaintiffs who win Article 22 suits. However, some foreign countries allow fee-shifting in all cases. My understanding is that the United States is fairly unusual in forcing prevailing plaintiffs to bear their own legal expenses in most cases. If Iraq has a general fee-shifting rule, not including a specific one for these claims is to be expected. Including Article 22 is tremendously important, because it makes the rights of the Law truly self-executing. Hortatory statements about rights are all well and good, but the real question is will government officials respect the rights. The threat of putting government officials personally on the hook financially provides a tremendous deterrent. That's particularly important because establishing a true rule of law is an essential part of Iraq's transformation into a democratic, functional nation. By providing a means for individual citizens to use the courts to constrain government abuses, the Law provides an important step forward. Whether the courts will actually give effect to the Law remains to be seen, but this is the right sort of text to include. Finally, Article 24 parallels the Ninth Amendment, providing that the enumeration of some rights should not be interpreted as exhaustive. It then goes on to state that the Iraqi people enjoy "all the rights that befit a free people… including the rights stipulated in international treaties and agreements… and the law of nations." It also provides non-Iraqis with all "human rights not inconsistent with their status as non-citizens." I'm all for including a clause like this, especially because incorporating positive protections of human rights in international law into the constitution promotes the overall interest of human rights. The question of how to interpret vague language like this is as vexatious as ever, but there are serious risks in attempting to limit rights to those protected by a document: under changed circumstances, new rights may be widely recognized as fundamental yet left with no protection. Some argue that whether and when to recognize those new rights should be left exclusively to the political process. I'm less sure, and I'm reassured to know that the Iraqi government is binding itself to abide by international human rights conventions. The language about non-Iraqis is interesting. It provides most of the protection I would like to see. I have no objection to excluding noncitizens from voting, for example. I do expect that this will be read with the clause on land ownership to reach the conclusion that the Iraqi government can restrict ownership of land by foreigners, but that's not a tremendous loss, and if the government applies such a rule after permitting sales to foreigners, the eminent domain requirement of paying compensation would presumably still protect them. At this point, it makes sense to mention some of the protections in the United States Bill of Rights that are not included in the Law's list of fundamental rights. As mentioned, the law establishes Islam as the state religion, but provides fairly extensive protections for minority religious groups, both within Islam and without. I suspect that it will have less tolerance for atheists, but even they have a reasonable argument for protection as a "belief." Article 17 essentially reverses the Second Amendment. There is no direct analog to the Third Amendment's prohibition on quartering soldiers in private homes during time of peace, although that might be read into the protections for the "sanctity of the house" and against deprivations of private property except by eminent domain. In any event, the Third Amendment's protection is really addressed to an 18th Century abuse that has little relevance to the modern world; it's not happenstance that the Supreme Court has never construed the Third Amendment's meaning in American law. As I mentioned before, there are no protections for jury trial. There is also no requirement that defendants be tried in the same district where the crime is alleged to have been committed, but that requirement is largely designed to effectuate the goals of jury trial. There's also no right to confront the witnesses against a defendant, although witnesses may be compelled to testify. Civil law countries typically place a much lower premium on live testimony in court, and the Law appears to reflect that attitude. The Law also has no prohibition on "excessive bail." Finally, there is no language similar to the Tenth Amendment, except for some language that I'll discuss later about the Kurdistan Regional Authority. In general, the federalism appears to be much more in the European model, where higher levels of government have the power to displace or compel lower levels of government, than the American system, which frequently checks the authority of the federal government to preserve the power of states. As a supporter of the European model of federalism, I think this is all to the good. I will consider the structural provisions in Chapters Three through Nine in a separate post. (Comment on this)
Sunday, March 14th, 2004
10:58 am	Fellers v. United States Fellers v. United States, 02-6320. Opinion by Justice O'Connor for a unanimous Court. The Sixth Amendment provides a right to counsel in criminal cases. This case turns on two questions: whether the police can have a discussion with a suspect about suspected criminal conduct after the right to counsel has attached without providing Miranda warnings and, if not, whether subsequent statements by the suspect tending to prove guilt are "fruits of the poisonous tree," which is one of my favorite colorful legal phrases. The Court of Appeals for the Eighth Circuit concluded that the initial, unwarned conversation was not a violation of the Sixth Amendment, because it was not an "interrogation," and thus did not reach the second question. The Supreme Court reversed the Eighth Circuit, and remanded for consideration of the second question. The Opinion Justice O'Connor wrote for a unanimous Court. She began by laying out the facts. A federal grand jury indicted the petitioner for conspiracy to distribute methamphetamine. The police went to his house to arrest him. Before they placed him under arrest, they informed him that they would like to talk with him about his role in the drug trade and that he had been indicted. They apparently did not directly question him, but told him that the indictment involved four others. Petitioner, apparently not the sharpest tool in the shed, proceeded to tell the police that he knew the other four and had used methamphetamine with them. After a brief conversation, the police arrested him and took him to the local jail. They gave him his Miranda warnings, he waived the right to have counsel present during the interrogation, and he repeated his earlier statements, and admitted having loaned money to one of his associates despite knowing that it would likely be used for the drug trade. At trial, petitioner sought to have the initial statements suppressed as violations of his right to counsel and to have the jailhouse statements suppressed as fruits of the poisonous tree. Under most circumstances, evidence that is only discovered because of illegally obtained evidence is itself suppressed. The idea is that the police should have no incentive to conduct illegal searches and interrogations. Fruits of the poisonous tree is the traditional way courts and lawyers describe such secondary suppressions. The magistrate judge recommended suppressing all of the statements, but the district court concluded that the statements at the jail were made after a knowing waiver of rights and could be admitted. A jury found petitioner guilty and he appealed. The Court of Appeals concluded that the initial statements were admissible, because the police hadn't "interrogated" the suspect. The concurring judge disagreed, but agreed with the district court that the knowing waiver rendered the secondary statements admissible, and thus would have affirmed on other grounds. Justice O'Connor only fully addressed the initial question of whether the police violated petitioner's right to counsel during the conversation at petitioners' house. She reviewed the standard cases on right to counsel. The right to counsel becomes active when judicial proceedings begin; because this conversation took place post-indictment, petitioner had a right to counsel. She stated the standard test of whether the police deliberately elicited the information. The Sixth Amendment does not bar the use of statements that are volunteered without any effort on the part of the police. But under the facts of this case, she easily concluded that the police had deliberately elicited the information. The statements at the house were thus the result of a Sixth Amendment violation. Because the lower court concluded that the initial statements were not the result of a constitutional violation, its analysis of whether the later statements were fruits was based on a faulty premise. The Supreme Court has not settled the issue of whether statements made after a waiver of the right to counsel are admissible when those statements merely repeat prior statements made during a Sixth Amendment violation. Because it remains an open question, the case was remanded to the Eighth Circuit to allow that court to make the initial appellate determination. Analysis The Court correctly applied the straight-forward analysis in this case. The point of the cases limiting the ability of the police to interrogate suspects in the absence of counsel is to prevent the police from circumventing the right to counsel by taking a suspect unaware. Turning it into a technical rule that the police can circumvent by simply making statements designed to elicit responses instead of asking questions would serve no purpose and would encourage the police to attempt to weasel out confessions that violate the spirit, if not the letter, of the Sixth Amendment protections. Under the Court's rule, the police have every incentive to provide the Miranda warnings up front. If the suspect waives the right to counsel, they get admissible evidence. And if the suspect does not, the right to counsel is vindicated. The interesting question is really the fruit of a poisonous tree analysis. On the one hand, the defendant may have made the later statements partially based on the knowledge that he had already in essence confessed. A prior confession that the suspect does not know is inadmissible is a powerful tool to extract a subsequent confession. On the other hand, the suspect may simply have wanted to cooperate. Suppressing a statement made after a knowing waiver of rights is a strong remedy and risks allowing a guilty suspect who has confessed to go free. I'm inclined to think there should be a strong rule in these cases, because a bright-line rule eliminates any incentives for the police to play games. I don't want police deliberately violating the Sixth Amendment hoping to later cure the error; if they just administer the warnings upfront, everything becomes simple and any confessions are based on a truly knowing waiver of rights. But it makes sense to remand this question to the Eighth Circuit for initial consideration, so I agree with the Court's opinion. (2 Comments |Comment on this)
Saturday, March 13th, 2004
1:40 pm	Alaska Dept. of Environmental Conservation v. EPA Alaska Department of Environmental Conservation v. Environmental Protection Agency, No. 02-658. Majority opinion by Justice Ginsburg, in which Justices Stevens, O'Connor, Souter, and Breyer joined. Dissent by Justice Kennedy, in which Chief Justice Rehnquist and Justices Scalia and Thomas joined. Environmental policy has been a great success story for cooperative federalism. The federal government creates a large number of rules and policies but permits the states to implement those rules if they choose to, in which case the states retain primary enforcement authority. Everyone agrees that this arrangement is constitutional, because the states are voluntarily choosing to participate in the federal programs. This case presents a purely statutory question: does the EPA have the authority to overrule a judgment of a state environmental agency that is not supported by evidence or is it required to seek state court relief? While the question is purely statutory, the various justices' analyses depend heavily on their understandings of the constitutional issues of federalism implicated by Congress's statutory decisions. Their decision also has significant consequences for the effectiveness of the Clean Air Act, which is a tremendously successful act that is largely responsible for the enormous improvement in air quality during the time that it has been in force. The Supreme Court upheld the EPA's authority. The Majority Opinion Justice Ginsburg wrote the majority opinion. Justice Ginsburg began by describing the statutory regime at issue. The Clean Air Act includes a program called Prevention of Significant Deterioration ("PSD"). Under PSD, covered major air pollution emitting facilities cannot be built without emplying the Best Available Control Technology ("BACT"). The Clean Air Act defines BACT as "an emission limitation based on the maximum degree of [pollutant] reduction . . . which the permitting authority, on a case by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for [the] facility. . . ." The Act includes both a general statement of EPA authority and a specific statement. The EPA may respond to a state's failure to comply with the Act by issuing an order stopping construction, assessing an administrative penalty, or by seeking an injunction in court. The Act specifically authorizes the EPA to enforce the PSD program by taking measures necessary to stop construction of noncomplying facilities, whether by issuing an order or by seeking injunctive relief. This case deals with whether the EPA has the authority to stop construction of a facillity that the Alaskan environmental agency has deemed to use BACT, where the EPA considers that judgment unreasonable. After her introduction, Justice Ginsburg described the Clean Air Act's history in more detail. Congress originally passed the Act in 1970. The Act required the EPA to define National Ambient Air Quality Standards, which set the levels of pollution that clean air could contain. Each state must submit a plan to achieve and maintain air that meets the quality standards, with the EPA required to step in if the state does not promulgate an adequate plan. The EPA approved Alaska's plan. One of the required measures is the PSD plan, which is intended to prevent areas with clean air from slipping. As of 2002, every area that once violated the NAAQS for nitrogen oxide, the pollutant at issue in this case, is now in compliance. No major emitting facility may be modified or built without receiving a permit that may not be issued if the facility does not use the "best available control technology" to reduce emissions of the controlled pollutants. BACT must provide the most reduction in the amount of pollutants emitted, taking into account the specific circumstances of the facility, including economic practicality. Permits also can't be issued if they would increase the amount of the pollutant past the NAAQS, or would cause it to go up by too much. The Clean Air Act authorizes the EPA to issue an order prohibiting construction if a state is not enforcing the requirements of the EPA, and also requires the EPA to prevent the construction of any facility that violates the PSD requirements. Incidentally, in case you think that I'm making this more confusing than necessary with all the acronyms, the Court's opinion is much, much worse. Many sentences are little more than alphabet soup, which is largely a function of trying to write concisely about complicated regulatory structures. The majority then turned to the facts of this case, which I'll condense a lot. A major zinc producer wanted to expand its mine in an impoverished area of Alaska 100 miles north of the Arctic Circle. The company, which is the economic mainstay of the region, wanted to build additional diesel power plants to run its operation. The Alaska Department of Environmental Conservation decided that BACT was a process that would reduce nitrogen oxide emissions by 90 %. The company proposed instead using a different technology that would reduce emissions by 30 %. The Alaska agency agreed in a draft permit, after applying the top-down method of identifying BACT, which is the straightforward, but not mandatory, process of considering the most effective technology, but if presented with evidence that that technology is infeasible, switching to the next best technology, and so forth until the best technology that can be implemented has been identified. The agency's staff had concluded that the superior technology was technically and economically feasible, relying on the average cost per ton of nitrogen oxide removed. But the agency overruled its staff, agreeing instead to a proposal by the company to retrofit some of its older generators with the second-best technology, for a total increase in polution that would be smaller, assuming that at least one of the generators was offline at all times. The National Parks Service objected, arguing that the offset was not permissible, and that in any event the company's plan involved lifting use restrictions on the pre-existing generators that made them part of the expansion plan, and hence covered by the BACT requirement in their own right. The EPA agreed with the Parks Service on both points. The Alaska agency responded by abandoning the offset plan, but by concluding that the superior technology was not economically feasible, despite a lack of any evidence on its effects on the mine's ability to compete and relying on the costs of producing energy for typical rural power plants. The EPA objected again and suggested ways to analyze the question. The agency issued a final report and permit without demanding any financial data from the company, and largely basing its decision on the importance of the mine to the region's economic prosperity. The EPA issued a series of orders forbidding construction; while the Court lays out in some detail the sequence of orders, modified orders, and withdrawals of orders, suffice to say that the EPA ordered the company to not modify its facility, unless it uses the 90 % reduction technology as BACT. The company petitioned the Ninth Circuit Court of Appeals for relief from the EPA orders. The courts of appeals have original jurisdiction over certain orders from administrative agencies, including the orders issued by the EPA to the company. After dealing with some procedural matters, the Ninth Circuit upheld the EPA's orders. The Supreme Court granted certiorari to resolve the important question of federal law of the scope of the EPA's authority. The majority opinion began its analysis by considering the procedural question of whether the EPA's order was final, allowing judicial review. After noting that the EPA did not contest the issue before the Supreme Court, Justice Ginsburg concluded that the order was, indeed, final and thus reached the merits. The central question is whether the EPA's supervisory authority extends to reviewing the decisions of state environmental agencies under the Clean Air Act. The statute expressly gives the EPA the authority to stop construction when a state is not complying with the Act's requirements. All parties agree that the EPA could stop construction if a permit did not include a BACT determination. The question is whether the EPA can issue an order when a state includes a BACT determination that does not comply with the Act's requirements. The Court agreed that that was a rational interpretation of the Act and thus upheld the EPA's interpretation. The EPA has a longstanding interpretation of the Act as allowing it to make determinations of whether a BACT finding was reasonable, and the Court noted that that interpretation was due deference, although not the "Chevron" deference that sometimes applies in administrative law cases and provides almost definitive weight to administrative rulemakings. The state agency argued that BACT determinations are subjective, weighing competing concerns, and are entrusted to the states to make. While the Court acknowledged that there may not be a single correct determination, it reasoned that some determinations could be unreasonable. The EPA did not claim the authority to determine BACT, but only to reject unreasonable determinations. The Court rejected the interpretation that Congress intended the EPA to ensure the formal inclusion of the term "BACT" but not to ensure that the term was used meaningfully. Justice Ginsburg emphasized the limited nature of the EPA's inquiry- not second-guessing the agency, but simply ensuring that the state agencies reasonably comply with the law. The Court distinguished other requirements that the EPA expressly approve BACT determinations in certain cases, by noting that those were requirements, where this case is about whether the EPA is authorized to examine BACT determinations in other cases. Furthermore, when approval is required, the EPA is not required to defer to a reasonable state agency determination that it disagrees with. Finally, the agency argued that the only remedy was for the EPA to bring an action in state court challenging its determination. The majority noted that it would be very unusual to require a federal agency to seek review in state court. In the absence of clear textual language supporting that conclusion, the Court followed the EPA's more ordinary interpretation. The Court also rejected concerns about whether the record would be sufficiently developed for federal court review and whether the EPA would gain a tactical advantage by choosing the forum or manipulating the burden of proof. To foreclose that argument completely, the Court held that in either defending an order it issued or in bringing a civil action, the EPA bears the burden of persuasion that the state agency's decision was not reasonable. The Court decided that the Ninth Circuit's analysis was consistent with that burden of proof. The Court also rejected concerns about untimely stop-construction orders, noting that this case dealt with a preconstruction order and that the courts have previously rejected orders issued long after construction began. The Court then analyzed the specific decision of the EPA. It concluded that the EPA acted properly in rejecting the agency's decision. Taking the record as a whole, the Court concluded that the EPA's decision was not "arbitrary or capricious," which is a standard test for administrative law decisions. The Court agreed that the Alaska agency had no evidence to support its conclusion and could not reasonably state that it was unable to analyze the financial consequences of a different conclusion while still using those consequences to adopt a less-stringent BACT. The Court carefully considered the evidence included in the permitting process, and agreed with the EPA's conclusion that the state agency's decision was unreasonable. The majority also noted that the agency could revisit the issue if it assembled more data to support a reasonable analysis. The Dissent Justice Kennedy wrote the dissent, in which the Chief Justice and Justices Scalia and Thomas joined. Justice Kennedy argued that the Court should have rejected the EPA's decision based on the language of the Clean Air Act, general principles of administrative law, and the background principles of federalism. He began by analyzing the statute, which orders the EPA to enforce the requirements of the Act. He argued that the state agency is vested with the power to "determine" the BACT for the permitting process. Relying on a dictionary definition, he concluded that "determine" means to authoritatively settle a question. The BACT definition inherently requires discretion and leaves it to the state agency to balance the various policy concerns the Act addresses. Under Justice Kennedy's analysis, the EPA can ensure that the state agency follows the BACT process, but has no authority to review the results of that process, regardless of how much it disagrees with them. Because the state agency followed a process and reached a conclusion about what was BACT, the EPA lacked the authority to block construction that the state agency issued a permit for. Justice Kennedy argued that when Congress intended EPA oversight, it said so in clear language, such as the BACT approval requirements in other cases that do not apply here. He rejected any concerns about a "race to the bottom" by stating that the Act placed responsibility in the hands of the states. In his analysis, both the Congressional policy and the factual record demonstrate that the states overwhelmingly carry out their duties in good faith. The dissent also argued that EPA oversight is not necessary, because the statute requires that a state plan include the option of judicial review. The EPA can participate in the state administrative proceeding and can seek review through the state courts if it disagrees with the results. In Justice Kennedy's analysis, the remedy of allowing a federal agency to set aside a state administrative decision is even more unusual than requiring the agency to sue in state court. The statute clearly envisions the EPA participating in the comment process in the state administrative proceeding. The dissent reasoned that it follows that the EPA could also participate in the judicial review of the state agency's decision. The state courts, not the EPA, have the responsibility for ensuring that state agency's respect due process requirements and do not make arbitrary and capricious decisions. Justice Kennedy also noted that the majority approves a scheme that separates the burden of persuasion, which is on the EPA, from the burden of pleading the claim, which is on the state agency, an unusual and burdensome arrangement. The dissent also argued that it would be unseemly and contrary to the federal structure to allow the EPA to enjoin a permit that has already been approved by the state courts, as could happen under the majority's system. In his analysis, judicial decisions cannot be reopened by administrative agencies. Reopening a federal courts decision would violate Article III and a similar respect should be accorded to state courts. He would thus apply, at a minimum, a clear statement rule before "insulting" the state courts by subjecting their decisions to federal agency review. Aditionally, Justice Kennedy raised the concern of a late decision by the EPA, sweeping away prior practices and unsettling the expectations of both the states and private parties. Justice Kennedy also noted the potential "Zeno's Paradox" of requiring the state agency to layer on further procedure in order to satisfy the EPA that its conclusion is reasonable, arguing that this could lead to cycles of worthless procedural process. The dissent also worried that this outcome was bad policy, leading to a long and expensive permitting process while undercutting the federal balance at the discretion of a single agency official. Finally, Justice Kennedy complained that the majority provided Chevron like deference, even though it acknowledged that the EPA was only entitled to less deference, while failing to appreciate the deference that the states are owed as coequal sovereigns entitled to equal dignity and respect. Analysis The majority has the better of this argument. The argument is really about statutory interpretation, and the interpretation that complying with the requirements of the Clean Air Act means going through the motions but permits unreasonable decisions is inherently silly. Of course, laws sometimes are silly, but there's no reason to think that Congress intended that perverse result. Fears of a race to the bottom are real, and this case presents precisely the worst danger, where a state makes a judgment that enforcing the law as it reads threatens its economic welfare, without even making a showing that the economic worries are justified. The Clean Air Act is not primarily a procedural act requiring certain dance steps from state agencies. It is an important act of substantive regulation, carried out through cooperative federalism. Forbidding Congress from setting up systems like this one, or even requiring Congress to use magic words to do so, encourages laws that simply rely on federal power directly. That result is far more harmful to the legitimate concerns of federalism such as the principle of subsidiarity, which is the idea that government typically governs best by addressing problems at the lowest level that is competent to deal with them. While this decision is fundamentally about a statute, the justices are all wrapped up in the broader struggle over our federal system. As I've said before, I reject Justice Kennedy's expansive, non-textually based notions of sovereign immunity and overblown deference to states. I think the core statement about federalism in the Constitution is contained in Article VI: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." The Thirteenth to Seventeenth Amendments were all also intended to shift the balance towards the federal government. Where Congress has decided to act in a field of law, within its enumerated powers, giving its acts full force even though they constrain the action of states is fully consistent with our federal system, properly understood. So even sliding into the underlying constitutional fight, the majority gets it right. (1 Comment |Comment on this)
Saturday, January 31st, 2004
5:36 pm	Digest version available All future posts will be available in a digest form at www.livejournal.com/~ahm_digest The digest posts will consist of the first paragraph, and then a link to the full post on ~adamhmorse. That way, people can include me on their friends page or similar aggregators without having my posts last for pages and pages. Also, it eases the lives of people who want to skip some of the more, shall we say, technical decisions. (1 Comment |Comment on this)
5:28 pm	Kontrick v. Ryan Kontrick v. Ryan, 02-819. Unanimous opinion by Justice Ginsburg. The parties in this case are two plastic surgeons who were formerly partners in a practice together. Unfortunately, their skills at beautification were insufficient to prevent a bankruptcy dispute from getting very ugly. Their dispute ultimately went to the Supreme Court, although only on a limited question about the procedural requirements of the Federal Rules of Bankruptcy Procedure. Rule 4004 states that a creditor has 60 days after the first date set for a meeting of creditors to object to a debtor's discharge. This case deals with the question of whether a debtor can invoke that time limit after a court has ruled against him on the merits. Justice Ginsburg wrote for a unanimous court holding that a debtor must raise the issue of the time bar when the objections are filed or forfeit the issue. The Court's Opinion Justice Ginsburg began by describing the basic principles of bankruptcy law. Bankruptcy law permits an individual debtor to discharge almost all debts through a Chapter 7 liquidation. In order to receive the discharge, the debtor must satisfy a set of requirements, most of which are designed to prevent fraud. The relevant requirement for this case is that the debtor must not have transferred assets with the intent to defraud a creditor in the year preceding the bankruptcy case. The discharge may, however, be opposed by the trustee, the United States trustee, or any creditors of the debtor. The bankruptcy courts resolve such objections. The time limits to file objections are defined by the Rules of Bankruptcy Procedure, which provide the creditors with 60 days within which to file objections, although the Rules also permit the court to extend that time limit for good cause if a motion to extend time is filed before time runs out. Justice Ginsburg then described the facts of this case. Kontrick is a plastic surgeon who filed for bankruptcy in 1997. Ryan, a fellow plastic surgeon and a former business associate of Kontrick's, was one of his major creditors and opposed a bankruptcy discharge. After three successive time extensions, Ryan filed a timely set of objections to Kontrick's discharge. He alleged that Kontrick had transferred property within one year of the bankruptcy petition with the intent to defraud creditors and therefore could not be granted a discharge. Some months later, Ryan filed an amended complaint. The amended complaint listed for the first time the particulars of Kontrick's alleged fraudulent transfers: some years before, Kontrick had taken his name off of the joint bank account he had with his wife, but by continuing to deposit his paychecks into the account, thus transferring money to his wife. Kontrick filed an answer, in which he did not raise the issue of whether the amendments were timely, admitted the transfers to the family account, and denied that the transfers violated the bankruptcy laws. After "acrimonious" discovery, Ryan moved for summary judgment and submitted a statement of undisputed facts with his motion. Kontrick moved to strike some of the facts on the grounds that the summary judgment papers included new, untimely allegations. Kontrick noted that the family account claims were first raised in the amended complaint, but did not ask the court to strike those claims as untimely. The bankruptcy court granted Kontrick's motion to strike in part, but granted Ryan summary judgment on the family account claim and denied Kontrick a discharge of his debts. Kontrick moved for reconsideration, arguing that the bankruptcy court lacked jurisdiction over Ryan's claim because it was not timely and the time limit was jurisdictional. The court denied reconsideration and held that Kontrick had waived the timeliness argument by not raising it before the court reached the merits. Kontrick appealed sequentially to the district court and to the Court of Appeals for the Seventh Circuit, each of which affirmed the bankruptcy court's decision. The Seventh Circuit joined some other circuits that had ruled that timeliness of objections is not jurisdictional, but a circuit split existed, with at least the Eleventh Circuit disagreeing. The Supreme Court granted cert to resolve the split and affirmed the Seventh Circuit. In a footnote, the Court noted that it limited its consideration to the question presented, whether the time limit in Rule 4004 is jurisdictional, without considering either whether Kontrick's mentioning the addition of new claims was sufficient to raise the untimeliness defense or the question of whether the amended complaint related back to the original complaint. When a filing "relates back" to a prior filing, it is treated for purposes of timeliness as if it had been filed when the prior filing was. Thus, if Ryan's amended complaint related back to his original complaint, it would be timely, but the Court did not reach the issue. Justice Ginsburg then turned to the legal issue of the scope of a bankruptcy court's jurisdiction. Under the Constitution, Congress determines the scope of the jurisdiction of the inferior federal courts. Some of the provisions related to bankruptcy law contain time limits, such as the requirement that a party must timely object to a bankruptcy court's ruling to receive de novo review by the district court. However, the time limits for filing objections to a discharge are not statutory. The statutes only state that objections to discharges are core bankruptcy matters and thus within the jurisdiction of the bankruptcy courts. The time limits are within the bankruptcy Rules. As a matter of black-letter law, the Rules do not extend or diminish the jurisdiction of the federal courts, simply constraining the procedures by which that jurisdiction is exercised. The Rules themselves state in Rule 9030 that they do not affect the jurisdiction of the courts. Justice Ginsburg thus concluded that Rule 4004 is a claim-processing rule, not a jurisdictional limitation. Kontrick agreed with that much, conceding that the question was not about the subject matter jurisdiction of the bankruptcy courts. Instead, he argued that "jurisdictional" is a short-hand that is used to refer to a time limit that the courts do not have the power to extend. Justice Ginsburg, in turn, acknowledged that courts, including the Supreme Court, sometimes use the term jurisdictional to refer to a mandatory, emphatic time limit. She then stated that courts ought to be more careful in using the term "jurisdiction," limiting it to the actual issues of subject-matter jurisdiction and personal jurisdiction. Kontrick argued that even though the claim-processing rules were not truly about the subject-matter jurisdiction of the courts, they have the same effect. Claims that courts lack subject-matter jurisdiction are highly unusual in that they cannot be waived and can be raised at any time, even after an adverse ruling or for the first time on appeal. The only limit to when subject-matter jurisdiction may be raised is that it must be resolved within the same case, not as a collateral attack. Justice Ginsburg rejected this argument. Claims related to subject-matter jurisdiction cannot be affected by the behavior of the parties. They cannot be waived or forfeited. A claim-processing rule, however inflexible, must still be asserted. The Court's opinion then returned to the specific claim-processing rules at issue. Rule 4004 serves several important purposes: it informs creditors of the time in which to bring their claims, cabins the discretion of the bankruptcy courts on whether claims are timely, and gives debtors an affirmative defense against untimely filings. Kontrick asserted that nothing that happened after the time limit to file objections ran matters, because courts lack the equitable authority to extend the time limit. The problem with this argument is that the court did not apply any doctrines such as equitable tolling, and the Court refused to reach the question of whether the time limits could be altered for equitable reasons, or whether parties may collusively waive time limits in some case where that would benefit them, perhaps by aiding one creditor at the expense of others. The only question presented in this case is whether Kontrick forfeited his affirmative defense by not raising it promptly. Justice Ginsburg held that time bars, like most affirmative defenses, must be raised in the answer, although an answer may be amended to include an affirmative defense that was inadvertently omitted. Even if a time bar could be asserted later than that, the absolute last time to raise it would be during the resolution of the merits of the case. Only subject-matter jurisdiction can be raised post trial, and time limits such as this are not in that category. Thus, Kontrick had lost his defense and the lower courts reached the correct result. Analysis The Court reached the correct conclusion here, but some of the reasoning could have been tighter. In particular, the description of the purposes that a time bar serves was mushy and did not further the overall analysis. The purpose of a time bar is not to create an affirmative defense for a debtor. Rather, the purpose is to conserve judicial resources by avoiding litigation over when late becomes too late, to promote the prompt and final resolution of bankruptcy cases, and to protect against claims over whether to permit a discharge being raised only when a creditor concludes that the allocation of assets is not favorable. Similarly, Justice Ginsburg's conclusion that claim processing rules must be asserted, and are thus unlike subject-matter jurisdiction rules is simply conclusory. It amounts to "you say that A is like B and therefor if B' then A'; however, A is not like B ." The important question is why is A not like B. The answer, of course, is that subject-matter rules are special because they are designed to prevent the courts from taking actions which they have no power to take. Claim-processing rules, on the other hand, are simply like any number of other rules that are designed to produce equitable results and manageable procedures. No underlying interest is vindicated by allowing a time bar to be asserted late in the proceeding. It does not advance the interests that the time bar itself serves, unlike allowing subject-matter jurisdiction objections to be addressed late, which ensures that courts do not issue orders on subjects that they are not competent to judge. The opinion would have been stronger if it had relied on a slightly more solid foundation for distinguishing the two types of claims. However, the conclusion is right and the language of the opinion does no harm, so it's not a huge concern. (Comment on this)
Wednesday, January 28th, 2004
10:51 pm	Frew v. Hawkins Frew v. Hawkins, 02-628. Opinion by Justice Kennedy for a unanimous Court. The profoundly antidemocratic principle of sovereign immunity generally prevents individuals from suing states in federal court. The Rehnquist Court has expanded the scope of the principle, which is often discussed in terms of the Eleventh Amendment, even though the "textualist" justices admit that the text of the Eleventh Amendment does not even come close to supporting some of the more extreme sovereign immunity decisions they have nonetheless issued. This case addressed whether sovereign immunity would be extended even further, prohibiting courts from enforcing consent decrees issued in valid court proceedings. The district court in Texas concluded that it did not, but the Fifth Circuit disagreed and through out the lawsuit in an interlocutory appeal. The Supreme Court granted cert to resolve a circuit split and reversed the court of appeals. The Opinion Justice Kennedy wrote for a unanimous Court. He began by describing the procedural history, including a description of the structure of the Medicaid program. Medicaid is a cooperative state-federal program to provide medical care for the poor. States are not required to participate, but if they agree to participate and accept the concomitant federal funding, they must obey a variety of laws. Among other requirements, participating states must have an Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program, which is a program designed to provide children with treatment that will prevent long-term health issues. This case was brought by the mothers of children eligible for EPSDT benefits. The case began in 1993 with a civil suit against various Texas state officials in their official capacities and against several state agencies. The lawsuit alleged a variety of failings of Texas's EPSDT program, including failure to provide proper screenings to eligible children and failure to provide notice of their rights. The district court dismissed the state agencies from the lawsuit on Eleventh Amendment grounds, but the case proceeded against the officials. The district court certified a class of plaintiffs, the million children in Texas entitled to EPSDT benefits. In 1996, the case settled when the parties agreed to a consent decree, which the district court approved. The current case is about enforcement of the consent decree, which is a detailed 80 page document setting out many specific duties of the state. Justice Kennedy gave an example of how the requirements of the consent decree are more specific and extensive than the general language of the federal Medicaid law it enforces. In 1998, the petitioners filed a motion asking the district court to enforce the consent decree, alleging that the state was not carrying out its terms. The state officials argued that they had been complying and that in any event the Eleventh Amendment barred enforcement of the consent decree. The district court disagreed and issued an opinion finding that the officials had violated the decree and requesting the parties to submit possible remedy plans. At this point, the state officials took an interlocutory appeal and the Fifth Circuit reversed, concluding that only violations of the underlying statute were actionable because of the Eleventh Amendment. Justice Kennedy then laid out the arguments by the petitioners to structure the rest of his discussion. The petitioners argued that the state waived the Eleventh Amendment arguments when it consented to the settlement. They also argued that even without waiver, the decree would be enforceable under the principles of Ex Parte Young. The Supreme Court only considered the latter argument, because it held that the petitioners were correct and there was thus no need to consider the waiver argument. Justice Kennedy reiterated that the Eleventh Amendment confirms the sovereign immunity of the states, giving the states themselves immunity against lawsuits from individuals. At the same time, Ex Parte Young held that federal law can be enforced against the states by bringing injunctive actions, although not actions for money damages or other retrospective relief, against state officials. The Court's opinion then discussed the basic principles of consent decrees, which have aspects that are like each of court orders and contracts. Federal consent decrees must effectuate federal interests. In order to be enforceable, a federal consent decree must resolve a dispute within the subject-matter jurisdiction of the court, come within the general scope of the complaint, and serve the purposes of the underlying federal law. Justice Kennedy then considered the intersection between the Eleventh Amendment and the rules governing consent decrees. He noted that the state, or technically its officials, did not argue that the consent decree violated either Ex Parte Young or the principles governing consent decrees. Essentially, the state officials argued that although the decree was valid, federal courts cannot enforce it because of the Eleventh Amendment. The officials argued that Ex Parte Young is a narrow exception, and that permitting the enforcement of consent decrees would expand it to cover everything that state officials agree to in a settlement. To avoid enforcing decrees that go beyond federal law, the state officials argued, the Eleventh Amendment should bar suits to enforce consent decrees. Justice Kennedy rejected the state officials' arguments. The petitioners sought enforcement of a valid consent decree that was entered to enforce a claim under federal law. While the Supreme Court previously ruled in Pennhurst that federal courts cannot enforce state law against state governments, Justice Kennedy distinguished Pennhurst because that case did not implicate the supremacy of federal law. While the state could have adopted a variety of different plans consistent with the Medicaid law, the consent decree required the state to comply with a specific, valid plan to enforce the statute's more general requirements. This case was more analogous to a prior case where a court awarded attorneys' fees to the plaintiffs in enforcing a prior judgment against state officials that were not making a good faith effort to comply. While plaintiffs ordinarily can not get money damages against states under the Eleventh Amendment, a fine to enforce an already issued injunction is permissible, partially because it's less intrusive on state sovereignty than sending state officials to jail to compel compliance. Similarly, once a consent decree has been validly issued, courts can enforce it. Justice Kennedy turned in the last part of his opinion to the argument that this rule could undermine sovereignty and accountability. While acknowledging that this argument has some force, he rejected the Eleventh Amendment as the mechanism to safeguard those interests in the context of consent decrees. Instead, courts should be ready to exercise their equitable authority to modify decrees in light of changed circumstances. Under appropriate circumstances, courts should be ready to terminate consent decrees, when a state shows that a decree is no longer necessary. However, when the consent decree has not been dissolved, the courts should enforce it according to its terms. Analysis The Court's conclusion was completely correct. However, if the Supreme Court interpreted the Eleventh Amendment correctly, the question would not have ever arisen. The Eleventh Amendment and notions of sovereign immunity are profoundly antidemocratic, based on antiquated notions that "the king can do no wrong." The Eleventh Amendment was a mistake that should have never been passed. However, the text of the Eleventh Amendment is very limited. The real problems come from expanding it to provide immunity against suits brought under the federal courts federal question jurisdiction, as opposed to suits brought under diversity jurisdiction. The text of the Eleventh Amendment does not reach that far, and the Supreme Court should not have expanded it to do so. As it is, the Eleventh Amendment gives license to states to flout validly enacted, constitutional federal laws under a variety of circumstances, despite the Constitution's decree that acts of Congress are supreme over state law. So the Supreme Court ought to repudiate the whole sorry line of cases extending notions of sovereign immunity to federal question cases. But at least the Supreme Court did not extend the line of cases to the silly extreme that the Fifth Circuit did. (1 Comment |Comment on this)
Thursday, January 22nd, 2004
9:06 am	Illinois v. Lidster Illinois v. Lidster, 02-1060. Justice Breyer wrote the majority opinion, which Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas joined. Justice Stevens wrote an opinion concurring in part and dissenting in part, which Justices Souter and Ginsburg joined. This case addresses the propriety under the Fourth Amendment of police roadblocks intended to gather information about a crime instead of intended to catch the criminal. The police sought to gather information about a hit-and-run accident through the roadblock. Instead, they caught a drunk driver, respondent Lidster. The Illinois trial court convicted Lidster, but the Illinois appellate court reversed the conviction on the ground that the stop violated the Fourth Amendment, as incorporated into the Fourteenth. The Illinois Supreme Court affirmed the appellate court. The Supreme Court granted cert and reversed. Majority Opinion Justice Breyer wrote the majority opinion. He began by laying out the facts and the procedural history. A hit-and-run driver killed a 70-year old bicyclist. About a week later, the police set up a roadblock seeking information. They partially blocked the eastbound lanes, pulling over each car as it drove through to hand the driver a flyer and to ask the occupants to see if they had seen anything. The stops took only 15-20 seconds each. The respondent swerved as he approached the checkpoint, nearly hitting a police officer. The officer smelled alcohol and signalled for Lidster to pull over so a breathalyzer test could be administered. It tested positive, leading to Lidster's conviction. The appeals court reversed and the state supreme court agreed, by a vote of 4 to 3, that Indianapolis v. Edmond controlled the case. The Supreme Court addressed drug investigatio